William Shade v. Eric K. Shinseki
2010 U.S. Vet. App. LEXIS 1982
| Vet. App. | 2010Background
- Appellant William E. Shade served in the U.S. Army from Oct 1965 to Sep 1967 and was treated for dermatitis in 1966 and 1967.
- Shade filed a 2000 claim for service connection for a skin disorder.
- November 2002 RO decision denied due to lack of a current diagnosis.
- November 2003 SOC denied for lack of current diagnosis and Nexus/connection to service.
- November 2006 medical evidence from private physician showed a current chronic dermatitis diagnosis; RO denied reopening in Dec 2006 SOC.
- September 9, 2008 Board decision denied reopening for the skin disorder; Board found no nexus and did not consider new-and-material evidence properly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper application of § 3.156(a) to reopen a previously denied claim | Shade contends Board misapplied § 3.156(a). | Secretary argues no new and material evidence under § 3.156(a) was submitted. | Board misapplied § 3.156(a); reversal and reopening warranted. |
Key Cases Cited
- Colvin v. Derwinski, 1 Vet.App. 171 (1991) (defined new and material evidence under prior regulation)
- Hodge v. West, 155 F.3d 1356 (Fed.Cir.1998) (invalidated Colvin's reasonable possibility standard)
- Elkins v. West, 12 Vet.App. 209 (1999) (board must apply § 3.156(a) as written; review under clearly erroneous standard)
- Winters v. West, 12 Vet.App. 203 (1999) (en banc; related to well-groundedness and new material evidence)
- Gutierrez v. Principi, 19 Vet.App. 1 (2004) (discusses reopening standard and duty to assist)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007) (lay evidence competent for medical diagnosis in some contexts)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009) (recognizes credibility of lay testimony in rebutting earlier medical evidence)
- McLendon v. Nicholson, 20 Vet.App. 79 (2006) (necessity of VA medical nexus examination in certain reopenings)