William Shade v. Eric K. Shinseki

24 Vet. App. 110, 2010 U.S. Vet. App. LEXIS 1982, 2010 WL 4300776
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 2, 2010
Docket08-3548
StatusPublished
Cited by171 cases

This text of 24 Vet. App. 110 (William Shade v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William Shade v. Eric K. Shinseki, 24 Vet. App. 110, 2010 U.S. Vet. App. LEXIS 1982, 2010 WL 4300776 (Cal. 2010).

Opinions

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 below, the Court will reverse that portion of the September 9, 2008, Board decision regarding the appellant’s claim to reopen his previously denied claim for service connection for a skin disorder and remand the matter.

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[112]*112ings of a skin condition associated with [the appellant’s] treatment during military service.” R. at 123.

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 38 C.F.R. § 3.156(a) to the evidence presented in his claim to reopen. In support of this contention, the appellant argues that the Board’s application of § 3.156(a) did not comport with the requirements of 38 U.S.C. § 5108, the statute requiring VA to reopen a previously denied claim when new and material evidence has been presented.

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 § 3.156. The Secretary contends that to qualify as new, evidence submitted must not be cumulative of the evidence of record, and to qualify as material, the evidence submitted must relate to an unestablished fact necessary to substantiate the previously denied claim. The Secretary further asserts that to qualify as new and material, evidence submitted must raise a reasonable possibility of substantiating the claim.

[113]*113In 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. 38 U.S.C. § 7104. There are two statutorily created exceptions to this rule. A final Board decision is subject to revision on the grounds of clear and unmistakable error in the original decision. See Cook v. Principi, 318 F.3d 1334, 1337 (Fed.Cir.2002) (en banc).

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Bluebook (online)
24 Vet. App. 110, 2010 U.S. Vet. App. LEXIS 1982, 2010 WL 4300776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-shade-v-eric-k-shinseki-cavc-2010.