Veteranclaims’s Blog

June 11, 2019

Single Judge Application; legacy appeals; new and material vs new and relevant; 38 U.S.C. § 5108(a); Veterans Appeals Improvement and Modernization Act of 2017; cumulative evidence;

Excerpt from Decision below:

“As part of the passage of the Veterans Appeals Improvement and Modernization Act of 2017, VA no longer reopens claims based on “new and material evidence.” Pub. L. 115-55, 131 Stat. 1105 (Aug. 23, 2017). That language is derived from the pre-Act version of the applicable regulation. See 38 C.F.R. § 3.156(a) (2018); 38 C.F.R. § 3.2400 (2018) (explaining that claims made before the effective date of the Act are “legacy appeals” to be analyzed under VA’s traditional process, and claims made after that date are to be adjudicated under a modernized appeal system); 84 Fed. Reg. 2449 (Feb. 7, 2019) (stating the effective date of the Act is February 19, 2019). Instead of reopening claims based on “new and material evidence,” claimants can file supplemental claims based on “new and relevant evidence.” 38 U.S.C. § 5108(a). Appellant’s claim was adjudicated under the legacy appeals system and, thus, the “new and material evidence” standard applies here.

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3163
KENNETH L. SPIDELL, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: While in service, appellant Kenneth L. Spidell, a veteran of the United
States Army, injured his right ankle. He submitted a service-connection claim for that injury in
November 2001, but it was denied without appeal in August 2004. He now seeks to reopen that
claim based on new and material evidence.1 The Board of Veterans’ Appeals, in an April 20, 2018,
decision, declined to reopen the claim because it found that the newly submitted evidence was
either immaterial to the claim or cumulative of other evidence already considered. The question in
this appeal, which is timely and over which the Court has jurisdiction, is whether the Board clearly
erred in its decision. Because the Board clearly erred in finding cumulative the lay statements of right ankle pain appellant experience between service and a 1997 workplace injury, which several
1 As part of the passage of the Veterans Appeals Improvement and Modernization Act of 2017, VA no longer reopens claims based on “new and material evidence.” Pub. L. 115-55, 131 Stat. 1105 (Aug. 23, 2017). That language is derived from the pre-Act version of the applicable regulation. See 38 C.F.R. § 3.156(a) (2018); 38 C.F.R. § 3.2400 (2018) (explaining that claims made before the effective date of the Act are “legacy appeals” to be analyzed under VA’s traditional process, and claims made after that date are to be adjudicated under a modernized appeal system); 84 Fed. Reg. 2449 (Feb. 7, 2019) (stating the effective date of the Act is February 19, 2019). Instead of reopening claims based on “new and material evidence,” claimants can file supplemental claims based on “new and relevant evidence.” 38 U.S.C. § 5108(a). Appellant’s claim was adjudicated under the legacy appeals system and, thus, the “new and material evidence” standard applies here.
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examiners have attributed his current disability, the Court sets aside the Board’s decision and
remands this matter to the Board for readjudication.
In a series of decisions from August 2002 to August 2004, VA denied appellant’s claim for
service connection for a right ankle injury.2 The ultimate denial in August 2004, stemming from a
January 2003 regional office (RO) decision, wasn’t appealed, becoming final.3 Then, in May 2012,
appellant attempted to reopen his claim.4 An October 2012 VA examiner opined that his right
ankle injury was less likely as not related to service because (i) the injury was more likely caused
by a 1997 workplace injury, rather than appellant’s service, and (ii) after appellant’s in-service
injury, a treatment note from 1992 reported that he had recovered well.5
Based on this opinion, VA continually denied appellant service connection until 2015 when
he reached the Board.6 There, he testified before a Board member.7 He stated that, although he had
indeed injured his right ankle following a workplace accident in 1997, he had experienced right
ankle pain before the accident.8 Appellant also submitted several lay statements from friends and
family he believed corroborated his hearing testimony.9
Nonetheless, the Board denied reopening, finding that the lay statements were “cumulative
of evidence that was previously of record at the time of the January 2003 decision, as there was
already evidence of an in-service right ankle injury and a current right ankle disability.”10 The
evidence did “not establish a nexus between the current right ankle disability and service,” the lack
of which was the basis for VA’s January 2003 denial.11
Appellant contends the Board clearly erred in rejecting the lay statements of record
“because there was no evidence . . . at the time of the January 2003 RO decision specifically
2 See Record (R.) at 2430 (Aug. 2002 rating decision), 2411 (Jan. 2003 continuation of denial), 2282-94 (Aug. 2004
Statement of the Case).
3 See 38 U.S.C. § 7105(c).
4 R. at 2271.
5 R. at 2236-37.
6 See R. at 2161-68 (Nov. 2012 rating decision), 2030-78 (Aug. 2014 Statement of the Case).
7 R. at 24-33.
8 R. at 27-28.
9 See R. at 35-39.
10 R. at 7.
11 Id.
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evidencing that [he] had been having pain in his right ankle between service and the 1997
workplace injury,” and so, “the Board had no plausible basis for finding the lay statements
submitted in December 2017 to be cumulative.”12
The government counters by arguing that (i) appellant isn’t competent to opine on the
etiology of his right ankle disability and (ii) because his right ankle pain wasn’t “noted” in service
or within 1 year of service, it doesn’t qualify for service connection based on the continuity of his
symptoms since service.13
The government’s arguments miss the mark. It’s true that appellant isn’t competent to opine
on the etiology of arthritis, as the Court has held that condition isn’t susceptible to lay
observation.14 But appellant doesn’t argue these statements conclusively prove the etiology of his
right ankle disability. Instead, he argues the existence of ankle pain between service and his 1997
workplace injury is a new material fact that VA didn’t have before it when it made its January 2003
decision.
And he’s right, especially given the “low threshold” for reopening.15 The only record
evidence the Secretary identifies as addressing right ankle pain between service and appellant’s
1997 workplace injury is a notation by an August 2002 examiner who recorded that appellant had
“some feelings of abnormality within the [right] ankle” after his in-service injury.16 But the Court
can’t conclude that “some feelings of abnormality” are equivalent to right ankle pain, and neither
can the Board.17 A medical professional is needed to opine on this issue.18 Alternatively, the Board
must adequately explain how the lay evidence of right ankle pain was cumulative of evidence in
the record before VA in January 2003 when there was no record evidence reflecting such a fact.19
12 Appellant’s Reply Brief at 2.
13 See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013); 38 C.F.R. § 3.304(a) (2018).
14 See Savage v. Gober, 10 Vet.App. 488, 498-99 (1997).
15 See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010).
16 R. at 2431.
17 See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998).
18 See id.; see also Savage, 10 Vet.App. at 498-99.
19 See Allday v. Brown, 7 Vet.App. 517, 528 (1995).
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Given this disposition, the Court need not now address the remaining arguments and issues
raised by appellant. 20 In pursuing his case on remand, appellant is free to submit additional
evidence and argument, including the arguments raised in his briefs to this Court. He has 90 days
to do so from the date of VA’s postremand notice.21 The Board must consider any such evidence
or argument. 22 The Court reminds the Board that “[a] remand is meant to entail a critical
examination of the justification for the decision.”23 The Board must proceed expeditiously.24
The Board’s April 20, 2018, decision is SET ASIDE and the matter REMANDED.
DATED: June 10, 2019
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)
20 See Best v. Principi, 15 Vet.App. 18, 20 (2001).
21 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92, 97 (2018).
22 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
23 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
24 38 U.S.C. §§ 5109B, 7112.

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