William SHADE, Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee.
No. 08-3548.
United States Court of Appeals for Veterans Claims.
Nov. 2, 2010.
24 Vet. App. 110
Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the appellant.1
Will A. Gunn, General Counsel, R. Randall Campbell, Assistant General Counsel, Leslie C. Rogall, Deputy Assistant General Counsel, and Michael G. Imber, all of Washington, D.C., were on the brief for the appellee.
Before HAGEL, MOORMAN, and LANCE, Judges.
MOORMAN, Judge:
The appellant, William E. Shade, through counsel, appeals a September 9, 2008, Board of Veterans’ Appeals (Board) decision that, inter alia, denied his attempt to reopen a claim for entitlement to service connection for a skin disorder. Record (R.) at 3-15. For the reasons set forth
I. FACTS
The appellant served in the U.S. Army from October 1965 to September 1967. R. at 473. The appellant was treated for dermatitis in April 1966 and again in April 1967. R. at 284. In July 2000, he submitted an application for, inter alia, entitlement to service connection for a skin disorder. R. at 694-700. On November 13, 2002, the Los Angeles, California, VA regional office (RO) denied his claim for lack of a current diagnosis. R. at 282-88. The appellant filed a Notice of Disagreement (NOD) in June 2003, and the RO issued a Statement of the Case (SOC) in October 2003 again denying the appellant‘s claim for lack of both a current diagnosis and a nexus opinion linking a present disability to service. R. at 248-66. The SOC stated that the appellant could reopen his skin disorder claim if he “provide[d] evidence showing a current and chronic disability with its relationship to military service.” R. at 262.
On February 24, 2006, the appellant submitted an application to reopen his claim on the basis of new and material evidence. R. at 244. The RO denied his application in August 2006, and the appellant submitted an NOD later that month. R. at 135-42. The RO issued an SOC on November 15, 2006, which stated that the current “evidence failed to show any current find-
On November 20, 2006, the appellant submitted an October 12, 2006, medical report from a private physician. R. at 100-02. The report stated that the appellant suffered from chronic dermatitis and that the condition had “been present for years.” R. at 101-02. In December 2006, the RO issued a Supplemental SOC that found that the appellant had not submitted new and material evidence sufficient to reopen his claim. R. at 97-99. The appellant perfected a substantive appeal in February 2007. R. at 94.
The appellant testified at a hearing before the Board on November 20, 2007. R. at 52-79. During the hearing, the Board member noted that, while the appellant‘s new evidence included a current diagnosis for dermatitis, there was still no nexus opinion linking the appellant‘s current condition with service. R. at 68-69. The appellant stated that he was scheduled for a regular physical examination with a VA physician the next week, and that he would attempt to obtain a nexus opinion then. R. at 66, 69. However, no nexus opinion was later provided.
On September 9, 2008, the Board issued the decision here on appeal. R. at 3-15. The Board noted that, while the appellant had provided new and material evidence for the other claims under consideration, he had not provided a nexus opinion as to his skin condition. R. at 10-11. To the contrary, the Board explicitly found that the evidence did not address whether there was any connection between the appellant‘s condition and service. R. at 11. Based on this determination, the Board found that the appellant had not submitted new and material evidence sufficient to reopen his claim for service connection for a skin disorder. R. at 5. Accordingly, the Board denied his application to reopen. R. at 12.
II. ISSUE ON APPEAL
In the Board decision here on appeal, the Board adjudicated three claims to reopen. Two previously denied claims for service connection for a neck disorder and a foot disorder were reopened and remanded to the RO. R. at 12-15. The Board denied the appellant‘s claim to reopen his previously denied claim for service connection for a skin disorder. The denial of that claim to reopen is the only issue here on appeal.
The appellant makes a single assertion of error: that the Board failed to properly apply
The Secretary argues that the Board decision should be affirmed because no new and material evidence was submitted by the appellant. The Secretary asserts that the Board‘s treatment of the evidence submitted in the appellant‘s claim to reopen was proper because the evidence did not meet the criteria of
In its decision here on appeal, the Board denied reopening because it determined that new and material evidence had not been presented. The Board‘s analysis indicated that it found that the evidence presented by the appellant in his claim to reopen was new in that it was not previously of record. However, the Board found that the evidence was not material because, while the evidence did establish a current diagnosis, it did not establish a nexus between that diagnosis and the appellant‘s service. In the decision that previously denied the appellant‘s claim for service connection, it was determined that the appellant lacked both a current diagnosis and a nexus to service. In addition to providing evidence of a current diagnosis in his claim to reopen, the appellant also provided lay testimony that indicated that he had suffered a skin disorder over a period of years. While the Board acknowledged this testimony, it determined that the appellant‘s lay statements were insufficient to establish a nexus to service. As the appellant has asserted in his brief to this Court that the Board failed to properly apply the regulation concerning the reopening of previously denied claims, the Court will review the Board‘s decision to determine whether or not the Board‘s analysis appropriately considered and applied the pertinent regulation.
III. ANALYSIS
A. Law Regarding the Reopening of Previously Denied Claims
Once a claim has been disallowed by the Board, generally, the claim may not be reopened.
If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
1. Pre-Veterans Claims Assistance Act of 2000 (VCAA)
Section 3.156(a) of title 38 of the Code of Federal Regulations is the regulation promulgated by VA to provide a more detailed description of what kind of evidence qualifies as new and material evidence. The present version of the regulation took effect in 2002. However, in order to properly apply that regulation and appreciate its purpose, it is necessary to review the prior version of the regulation, promulgated in 1991, and the caselaw associated with it.
Three cases have played a prominent role in the interpretation and application of
evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.
In Colvin, this Court provided a clear interpretation of the previous version of
Seven years after Colvin, the Federal Circuit addressed this test and declared the Colvin “reasonable possibility of a change in outcome” requirement to be invalid. Hodge, 155 F.3d at 1360. While VA had argued that it saw no inconsistency between its regulation and the test adopted by this Court, in pertinent part, the Federal Circuit held that the Colvin test was not a part of the VA regulation, and further, the Colvin test “may be inconsistent with the underlying purposes and procedures of the veterans’ benefits award scheme.” Id. The Hodge court stated that nothing more than the language of the regulation should be applied when determining whether new and material evidence has been submitted. The Federal Circuit noted that the regulation imposed a lower burden to reopen than the Colvin test, and specifically described the Colvin test as having “imposed on veterans a requirement inconsistent with the general character of the underlying statutory scheme for awarding veterans’ benefits,” which is “strongly and uniquely pro-claimant.” Id. at 1362. The Hodge decision thus invalidated the Colvin test while acknowledging that the application of the appropriate standard is the responsibility of the Board
Thereafter, in Elkins this Court held that, in accordance with Hodge, the Board was required to apply
When Elkins was decided, claimants were still required to establish that their claims were well grounded before VA was required to assist in their development. See Elkins, 12 Vet. App. at 213 (citing
2. Post-VCAA
The VCAA was intended to “reaffirm and clarify the duty of the [Secretary] to assist a claimant for benefits under laws administered by the Secretary, and for other purposes.” H.R. REP. 106-781 at 4 (2000). One of the specifically stated purposes of the act was to remove the requirement that a claimant submit a well-grounded claim before the Secretary‘s duty to assist would attach. Id. Following passage of the VCAA, VA proposed to amend
It thus appears that VA‘s position is that the language of the current version of
It is equally clear that VA did not intend that result when the change to the regulation was promulgated. The Federal Circuit stated in Hodge that it believed that the Colvin test, involving other similar words, placed too high a standard on claimants attempting to reopen previously denied claims through the submission of new and material evidence.6 The Secre-
A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
66 Fed. Reg. 45620, 45630 (Aug. 29, 2001) (to be codified at
As previously noted, the purpose of this regulation is to explain what kind of evidence will qualify as “new and material.” There are three operative sentences in the current version of
The final sentence of
We proposed to redefine “material” evidence to mean “existing evidence that relates specifically to the reason why the claim was last denied.” Many commenters felt this language was too restrictive. We agree, and therefore have revised the final regulatory language at
§ 3.156(a) in a manner that more accurately conveys the meaning intended, to state that “Material evidence means existing evidence that ... relates to an unestablished fact necessary to substantiate the claim.”
66 Fed. Reg. at 45,629.
When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the VCAA. However, the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. In the very words of VA, the application of the reasonable possibility portion of
To explain further, the current version of
Thus, it appears to the Court that VA in writing the words of its regulation could not have intended a reading of
B. Application of Law to Facts
In the case currently before the Court, the RO in October 2003 denied the appellant‘s claim for lack of both a current diagnosis and a nexus opinion linking an asserted present disability to service. R. at 248-72. As part of his claim to reopen, the appellant in November 2006 submitted medical evidence indicating that he has a current diagnosis of a skin disorder of the same type as that he experienced in service. R. at 101-02. He also provided his own sworn testimony in November 2007. R. at 52-79. In that statement, the appellant stated that he had been treated by VA doctors “over a period of years” for his skin condition. R. at 68.
The October 2006 doctor‘s report finding that the appellant has a current skin disorder qualifies as new evidence. It was not previously in the record before the agency, indeed the RO had specifically stated that there was then no evidence of a current diagnosis. R. at 123-24. Thus, the evidence is not cumulative as it describes the appellant‘s present diagnosis. Further, the Board, in its 2008 decision, acknowledged that the record qualified as new evidence. R. at 10-11. The Board, however, determined that this evidence was not material because the report, “by itself or in connection with evidence already in the file, does not relate to an unestablished fact necessary to substantiate the claim.” R. at 10-11. As support for this assertion, the Board stated that the doctor‘s report did not relate the appellant‘s present diagnosis of a skin disorder to service, “which would fulfill the nexus requirement that was also lacking at the time of the November 2002 rating decision.” Id. at 11. The Board‘s finding states that, because the newly submitted evidence pertained only to the unestablished fact of a current diagnosis, but not to the other unestablished fact of a nexus between that diagnosis and service, the evidence submitted by the appellant was not new and material.
The evidence submitted in the appellant‘s claim to reopen pertains to an unestablished fact—that the appellant currently suffers from a skin condition. As previously discussed, the regulation provides that for a claim to be reopened, new and material evidence must, taken together with the evidence currently of record and considering the fact(s) that must be proven, raise a reasonable possibility of substantiating the claim. In this case, the Board improperly applied this portion of the regulation. The Board stated that because the evidence submitted did not relate to the missing nexus element, it did not raise a reasonable possibility of substantiating the claim. The Board‘s analysis failed in two distinct ways. First, the Board failed to consider the newly submitted evidence in conjunction with the evidence previously of record. Secondly, the Board imposed a higher burden to reopening than is required by
Section 3.156(a) requires that newly submitted evidence be considered in concert with the evidence previously of record when determining whether the appellant has raised a reasonable possibility of substantiating the claim. The evidence previously of record in this case indicated that the appellant had suffered from a skin disorder while in service. R. at 284.
The requirement to provide a VA medical examination is part of the duty to assist. As the current matter takes the form of a claim to reopen, the Secretary‘s duty to assist in providing a medical examination does not attach unless the claim is reopened.
The threshold established by
Section 3.159(c)(4)(iii) provides that
When
In the comments to the final rule, VA discussed a situation similar to the present case (although in the context of well-groundedness). VA postulated an appellant‘s claim having been denied because there was no competent evidence that the veteran had a current disability. VA then observed: “If there were any competent evidence that the veteran did have a current disability, that evidence would constitute new and material evidence, which would reopen the claim.” Id. Once the claim is reopened, the veteran is entitled to VA‘s duty to assist, including a nexus medical examination in accordance with
In summary, the Secretary in exercising his rule-making authority provided that the words “reasonable possibility of sub-stantiating the claim” were intended to mirror those words used by Congress when it enacted the VCAA. 66 Fed. Reg. at 45629. VA‘s regulatory history indicates that its use of those words in the context of claims to reopen was not intended to erect a new, additional barrier to reopening a claim (i.e., a new Colvin test in other words). If submitted evidence is both new and material and, alone or in conjunction with evidence already of record, is consistent with the low threshold Congress intended by its use of the words “no reasonable possibility ... [of] substantiating the claim,” then the claim must be reopened. To conclude otherwise would result in the imposition a new requirement for reopening not found in section 5108.
Thus, the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. VA‘s use of the words “reasonable possibility of substantiating the claim” results in a pro-veteran standard for reopening—one that contemplates, in the case before us, the likely entitlement to a nexus medical examination if the claim is reopened. Through the VCAA, Congress intended that the bar to full development of veterans’ reasonably based claims be lowered. There is no reason to deny assistance to claimants merely because some of the relevant evidence was not submitted with the original claim once new and material evidence is presented.
The Board‘s analysis of the issue of reopening must first be confined to the subject of existence of new and material evidence alone and must not be an outcome-based decision. Were we to affirm the Board‘s application of
The Court concludes that the Board misinterpreted the plain language of
Furthermore, a veteran‘s testimony should not be rejected as not being material solely because he is a lay person offering observations as to his skin condition or, for example, because contemporaneous medical evidence is no longer available to corroborate it. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan, 451 F.3d at 1334-37 (all holding that “lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional“). Here, the Board impermissibly found that the appellant‘s statements were not material based on Moray v. Brown, 5 Vet. App. 211 (1993), which applied the Colvin standard that was rejected by the Federal Circuit in Hodge and which analysis of lay evidence does not take into account more recent decisions regarding the consideration of lay evidence. See Davidson, Jandreau, and Buchanan, all supra. But see Moray, 5 Vet. App. at 214 (holding that veteran‘s lay statements were not competent as to “medical matters“). The Court observes that the appellant provided his testimony in an attempt to establish a nexus between his in-service skin condition and his present diagnosis.
Thus, the Court will reverse the Board‘s decision regarding the appellant‘s skin disorder and direct that the appellant‘s claim be reopened. See Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (holding
IV. CONCLUSION
The Court having considered the parties’ briefs and the record on appeal, that portion of the Board‘s September 9, 2008, decision finding that the private doctor‘s report, which provided a current diagnosis of a skin condition, “does not relate to an unestablished fact necessary to substantiate this claim” is REVERSED. Further, the Board‘s decision denying the appellant‘s claim to reopen his claim for service connection for a skin disorder is REVERSED and the matter REMANDED for consideration on the merits.
MOORMAN, Judge, filed the opinion of the Court.
LANCE, Judge, filed a concurring opinion.
LANCE, Judge, concurring:
I believe that the majority opinion does a commendable job of sorting through the complicated history of the law involved and dissecting the statute and regulations at issue. However, I do not believe that the opinion adequately guides adjudicators or practitioners as to how to handle future cases. Accordingly, I am compelled to write separately to state my understanding of the Court‘s decision today.
The essential issue in this case is the proper relationship between the new-and-material-evidence standard to reopen a claim and the standard for triggering the Secretary‘s duty to provide a medical examination under
It makes perfect sense that the two standards should be the same in cases where they are both implicated. If the evidence in the file is sufficient to trigger the duty to assist, that assistance should be provided even if the claimant submitted the evidence to VA over the course of multiple proceedings. On the other hand, if the evidence is not sufficient to trigger the duty to assist, then reopening the claim only to deny it without providing assistance would be a hollow, technical decision. There is no reason to expend agency resources on a semantic determination
Of course, there are many cases that do not turn on a medical issue where the duty to assist would be implicated. For example, the issue on reopening could be the credibility of the claimant or the existence of evidence that corroborates a claimed in-service stressor. Similarly, even if direct service connection was the theory presented in the original claim, new evidence could implicate a theory of presumptive service connection where a medical opinion on causation was not necessary. In such cases, the McLendon standard would not be relevant to determining whether reopening is appropriate.
Ultimately, I believe that the new-and-material standard is a practical one. New and material evidence is evidence that—if found credible—would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence that could lead to the granting of the claim. Of course, once a claim is reopened, the adjudicator may determine that the new evidence is not credible or is outweighed by other evidence. However, I do not believe that either the statute or the regulation contemplates a situation in which new evidence could trigger a reopening and be found to be credible, but not be sufficient to at least trigger further assistance by the Secretary. In such a situation, reopening the claim would be a Pyrrhic victory and any error in failing to reopen the claim would be necessarily harmless. Therefore, if the new evidence submitted by a claimant is “neither cumulative nor redundant,” then I believe adjudicators should approach the reopening question by asking, “If I assume that this new evidence is credible, would all the evidence in the file considered together be sufficient to at least trigger some further assistance?” The answer to that question should guide adjudicators to a reopening decision that is legally correct and makes practical sense.