William Shade v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 08-3548

WILLIAM SHADE, APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided November 2, 2010)

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, filed the opinion of the Court. LANCE, Judge, filed a concurring

opinion.

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.

1

The appellant was first represented by R. Edward Bates, Esq., of Naperville, Illinois, who withdrew his

appearance on December 4, 2008. On the same day, Kenneth M. Carpenter, Esq., entered his appearance on behalf of

the appellant. W hile Mr. Carpenter filed the appellant's substantive brief, he withdrew his appearance on October 13,

2009. R. Edward Bates reentered his appearance on behalf of the appellant that same day and is the current counsel of

record.

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 findings 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.

2

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.

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

3

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). In the case before the Court, clear

and unmistakable error is not at issue. The second exception to finality is found in 38 U.S.C.

§ 5108. Section 5108 allows previously denied claims to be reopened if a claimant submits new and

material evidence. Section 5108, essentially unchanged since 1988,2 provides:

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.

Id. While this statute clearly provides that, in order to reopen a previously denied claim, evidence

must be submitted that is both new and material, it provides no further explanation as to what

evidence must show to be considered new and material. VA, employing its rulemaking authority,

2

In May 1991, Pub.L. 102-40, Title IV, § 402(b)(1), inserted the word "Secretary" for the word

"Administrator." No other changes were made to the original 1988 statute.

4

has promulgated a regulation designed to more fully define what is meant by new and material

evidence.

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 § 3.156(a):

Colvin, Hodge, and Elkins. Colvin v. Derwinski, 1 Vet.App. 171 (1991); Hodge v. West, 155 F.3d

1356 (Fed.Cir. 1998); Elkins v. West, 12 Vet.App. 209 (1999)(en banc). All three of these cases

involved the 1991 version of § 3.156(a). That version of § 3.156(a) defined new and material

evidence as:

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.

38 C.F.R. § 3.156(a)(1991). Shortly after the promulgation of this regulation, this Court addressed

the definition of new and material evidence.

In Colvin, this Court provided a clear interpretation of the previous version of § 3.156(a),

quoted above. The Court held that, as stated in the regulation, in order to be considered new,

evidence submitted for the purpose of reopening could not be cumulative or redundant of the

evidence previously of record. To be considered material, newly submitted evidence had to be

relevant and probative of the issue at hand. Colvin, 1 Vet.App. at 174. These two requirements,

newness and materiality, were derived directly from the regulation and statute. However, the Court

also held that the "bright line" rule articulated in Chisolm v. Secretary of Health and Human

Services, 717 F.Supp. 366, 367 (W.D. Pa.1989), applied to new and material evidence. The "bright

line" rule required that there "be a reasonable possibility that the new evidence, when viewed in the

context of all the evidence, both new and old, would change the outcome." Colvin, 1 Vet.App. at 174

5

(citing Chisolm, 717 F. Supp. at 367). The purpose of articulating this additional qualification was

to provide a clearer and more easily applied statement of the standard. Id. The Court reasoned that

this test was appropriate because, without its qualification, it would be possible for evidence to

satisfy the criteria articulated in the regulation yet be of limited weight and insufficient probative

value to warrant reopening and readjudication. Id. Colvin thus created a test whereby newly

submitted evidence must be determined to be new and material but also present a reasonable

possibility of changing the outcome. This so-called "Colvin test" remained in effect until the U.S.

Court of Appeals for the Federal Circuit's decision in Hodge.

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 or this Court in the first instance. Id. at 1364

fn 2.

Thereafter, in Elkins this Court held that, in accordance with Hodge, the Board was required

to apply § 3.156(a) as written, and that this Court would review the Board's decisions regarding new

and material evidence under the "clearly erroneous" standard. Elkins, 12 Vet.App. at 217-18. Our

decision in Elkins noted that the determination of whether new and material evidence has been

submitted is a factual determination to be made by VA. Id. at 217-18. Elkins had the effect of

allowing the Secretary to make a fact-based determination and requiring this Court to review that

determination under a deferential standard, as opposed to the de novo standard applied under Colvin.

6

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 38 U.S.C. § 5107(a)). This Court noted that Hodge decoupled the relationship between

well-groundedness and new and material evidence. Id. at 219 (noting that a well-grounded claim

was a prerequisite to having new and material evidence to reopen as to that claim). After Hodge,

VA would be required, after reopening a claim, to determine whether the new evidence and the

evidence previously of record made the claim well-grounded. Id. If so, then the claimant was

entitled to VA assistance under 38 U.S.C. § 5107(a).3 Elkins, 12 Vet.App. at 218-19. We noted in

Elkins that Hodge had the effect of lowering the bar for claims to reopen. Id. However, Hodge also

created a situation in which a claimant might submit evidence that met the requirements of §

3.156(a) but still have the claim denied because it was not well-grounded. See Winters v. West, 12

Vet.App. 203, 208 (1999)(en banc), vacated on other grounds, 219 F.3d 1375 (Fed. Cir. 2000). This

situation existed until the passage of the VCAA.

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 § 3.156(a) to its present form.

66 Fed. Reg. 17834-01 (April 4, 2001) (stating that the purpose of the amendment to VA regulations

was to "implement the provisions of the [VCAA]"). This proposed amendment added the

requirement that, in order to constitute new and material evidence, the evidence presented must

"raise a reasonable possibility of substantiating the claim."4 VA, in its discussion of the proposed

3

Section 5107(a) was the predecessor duty-to-assist authority prior to enactment of section 5103A, which

expanded the Secretary's duty to assist claimants. See VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (codified in various

sections of title 38, U.S. Code). The VCAA is discussed in the text below.

4

The proposed rule stated:

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 relates

specifically to the reason why the claim was last denied. New and material

evidence can be neither cumulative nor redundant of the evidence of record at the

7

amendment to § 3.156(a), stated that the purpose of changing that section was "to clarify the

definition of 'new and material evidence.'" 66 Fed. Reg. 17834-17838. Further, in its answers to

comments accompanying the final rule, VA stated that the changes made to § 3.156(a) applied the

"same standard" to claims to reopen as the VCAA applied to the application of the Secretary's duty

to assist. 66 Fed. Reg. 45620-01, 45629 (Aug. 29, 2001) ("We believe it is fair and reasonable to

apply the same standard . . . in determining whether a claim has been reopened, triggering VA's full

duty to assist by providing a VA examination or obtaining a medical opinion."); see also 66 Fed.

Reg. 17834, at 17838 ("this is consistent with the threshold established by Congress in the VCAA

for VA's duty to assist.").5

It thus appears that VA's position is that the language of the current version of § 3.156(a) is

designed to be consistent with the VCAA. One stated purpose of the VCAA was to lower the bar

for claimants attempting to avail themselves of the Secretary's duty to assist. H.R. REP. 106-781 at

4. During VA's rulemaking, the Secretary responded to several commenters who expressed concern

over use of the words "must raise a reasonable possibility of substantiating the claim." There, the

Secretary responded: "With respect to other claims for benefits, the VCAA provides that VA

assistance is required unless there is no reasonable possibility that this assistance would aid in

substantiating the claim. We believe it is fair and reasonable to apply the same standard–that there

be a reasonable possibility that VA assistance would help substantiate the claim–in determining

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. at 17839 (emphasis added).

The final rule stated :

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. M aterial 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 38 C.F.R. § 3.156(a)(2002)) (emphasis added).

5

"The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility

exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2).

8

whether a claim is to be reopened, triggering VA's full duty to assist by providing a VA examination

or obtaining a medical opinion." 66 Fed. Reg. at 45629 (emphasis added). Thus, VA expressed its

intent to use words substantially similar to those found in the VCAA as the "same standard" for the

words found in the revision to § 3.156(a). However, it is clear to the Court that VA's use of the

language in § 3.156(a) to further define "new and material evidence" is capable of being interpreted

in a manner that had the opposite of the pro-veteran result that the use of the similar language has

in the VCAA.

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 Secretary stated that he sought

to implement the goal of the VCAA with the amendment to § 3.156, and thus justified use of the

"same standard" for the definition of new and material evidence. Further, the Secretary's

interpretation of the new regulatory language specified that "there be a reasonable possibility that

VA assistance would help substantiate the claim in determining whether a claim is to be reopened

. . . ." 66 Fed. Reg. at 45629 (emphasis added). This language suggests a standard that would

require reopening if newly submitted evidence, combined with VA assistance and considering the

other evidence of record, raises a reasonable possibility of substantiating the claim. Thus, the

present version of the regulation must be read as creating a low threshold, to be implemented

according to the plain language of the regulation, as explained by the Secretary in the Federal

Register, in accordance with the stated purpose of the VCAA. It is in light of this legislative,

judicial, and regulatory history that this Court reviews the matter presently before it.

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

§ 3.156(a). One sentence discusses only new evidence and another sentence discusses only material

evidence. The regulation then concludes with a third sentence discussing new and material evidence

that uses the phrase "reasonable possibility of substantiating the claim." This language can be read

to suggest that the evidence must affect the merits outcome of the claim. The language of the

6

Colvin required that there "be a reasonable possibility that the new evidence, when viewed in the context of

all the evidence, both new and old, would change the outcome." Colvin 1 Vet.App. at 174.

9

regulation indicates that newly submitted evidence must meet the new and material requirements

as well as the general explanation laid out in the last sentence before a claim would be reopened.

This language, however, must be read in light of 38 U.S.C. § 5108, which states that, in order to

reopen a claim, submitted evidence must simply be new and material. Therefore, the words "raise

a reasonable possibility of substantiating the claim" cannot impose some new requirement beyond

that required by the statute without invoking an analysis of whether the Secretary had exceeded his

rulemaking authority. However, such an analysis is not required in this case because the Secretary

has, as noted above, provided an explanation of the language in the Federal Register. That

explanation is not inconsistent with the underlying statute. 38 U.S.C. § 5108.

The final sentence of § 3.156(a) states that evidence may not be cumulative and "must raise

a reasonable possibility of substantiating the claim." The noncumulative requirement has been well

established and need not be further discussed here. See Struck v. Brown, 9 Vet.App. 145, 151

(1996); Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Cox v. Brown, 5 Vet.App. 95, 99 (1995).

However, it is necessary for the Court to emphasize that the phrase "raise a reasonable possibility

of substantiating the claim" does not create a third element for new and material evidence. Rather,

that phrase provides guidance for VA adjudicators in determining whether submitted evidence meets

the new and material requirements.7 In particular, the immediately prior sentence discussing

material evidence provides that, to be considered material, newly submitted evidence must pertain

to "an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). This is

consistent with VA's stated position in its rulemaking concerning the revision to 3.156(a). In its

rulemaking, VA stressed that it did not mean the language defining "material" to be restrictive:

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

7

For reopening, 38 U.S.C. § 5103A(a) does not require VA to provide assistance to a claimant if there is no

reasonable possibility that such assistance would aid in substantiating the claim.

10

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 3.156(a) cannot impose a greater burden to reopening than imposed by

Congress by that language in the VCAA. It is only by so reading the regulation that the Court does

not find 38 U.S.C. § 5108, which has only two requirements, and § 3.156(a) to be in conflict. Once

the Board has made its determination in accordance with the regulation, this Court will review that

decision under the "clearly erroneous" standard of review. See Elkins, supra.

To explain further, the current version of § 3.156(a) was part of the same rulemaking effort

that included revisions to § 3.159 concerning VA's assistance in the development of claims.

Explaining how it intended to apply 38 U.S.C. § 5103A to claims to reopen based on new and

material evidence, VA stated that under the revised regulations, "VA will not, however, provide a

medical examination or obtain a medical opinion in an attempt to reopen a previously disallowed

claim." 66 Fed. Reg. at 17837-38 (proposed rulemaking). VA then presented its rationale that it did

"not want to expend our limited resources on ‘fishing expeditions' to create evidence based on a

claimant's hopes that such evidence would prove to be new and material." Id. at 17838. Finally, it

concluded: "If new evidence is presented or secured, VA would reopen the previously disallowed

claim and provide a medical examination or obtain a medical opinion as provided in proposed

section 3.159(c)(4)." Id.

Thus, it appears to the Court that VA in writing the words of its regulation could not have

intended a reading of § 3.156(a) and § 3.159 that, after the claimant has met the requirement of

submitting evidence that is both new and material, would deny reopening because an adequate

medical nexus opinion was not provided by the claimant. Indeed, this would require the claimant

to submit medical evidence in every case in which VA’s previous negative determination regarding

nexus or a current disability stood between the claimant and disability benefits. Cf. Stefl

v. Nicholson, 21 Vet.App. 120, 123 (2007) (holding that a medical opinion is considered "adequate

where it is based upon consideration of the veteran's prior medical history and examinations and also

describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed

11

disability will be a fully informed one.'" (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).

Such a reading would make the promise of assistance in obtaining a medical opinion illusory if new

and material evidence were presented, since assistance could never be delivered unless the veteran

first obtained such an opinion on his own.

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

12

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 § 3.156(a).

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 newly submitted

evidence provided a current diagnosis of a chronic skin disorder. R. at 101-02. Thus, the appellant

has established two (at least in the prima facie sense) of three Caluza elements of service

connection. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.

Cir. 1996) (table) (establishing that service connection generally requires medical or, in certain

circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation

of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the

present disability). Thus, it could not be said that the remaining element, a nexus between the

current diagnosis and the in-service event, could not be established were he provided a VA medical

examination.8

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. 38 C.F.R. § 3.159(c)(4)(iii).

8

Section 3.303(b) provides two alternative methods of establishing service connection: chronicity and

continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that

a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3)

medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice

symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495 (1997); 38 C.F.R. § 3.303(b) (2010). As for the first

requirement, notation of a condition during service “need not be reflected in any written document.” Savage, 10 Vet.App.

at 496-97; 38 C.F.R. § 3.303(b). W ith regard to the second requirement, lay testimony may be competent to show

postservice continuity of symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (Fed. Cir. 2006).

Thirdly, competent evidence, such as a VA examination, can establish an etiological nexus and, under McLendon,

ordering a VA examination may be obligatory. McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006).

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The threshold established by § 3.156(a) requires the Board to analyze whether the new

evidence presented "raises a reasonable possibility of substantiating the claim." If the Board

construes "raises a reasonable possibility of substantiating the claim" as a requirement that the

appellant submit his own medical nexus evidence to reopen his claim, even though he has provided

new and material evidence concerning any other missing element, it would force the veteran to

provide medical nexus evidence to reopen his claim so that he could be provided with a medical

nexus examination by VA.

Section 3.159(c)(4)(iii) provides that § 3.159(c)(4), stating the circumstance in which VA

will provide a medical examination, will only apply to claims to reopen once new and material

evidence has been submitted. However, that language does not require new and material evidence

as to each previously unproven element of a claim. In a case where medical nexus evidence is

missing, if § 3.156(a) were read to require a claimant to submit medical nexus evidence to fulfill the

requirement to submit new and material evidence, then § 3.159(c)(4)(iii) would be rendered

meaningless. The ultimate incongruity of such an interpretation is illustrated in this case by the

discussion during the appellant’s oral presentation. There, it was suggested that the veteran seek a

medical opinion from a VA treating physician that might then be submitted with his claim to reopen

in order to support reopening for the purpose of obtaining a VA medical nexus opinion. R. at 65-69.

VA's stated purpose in amending its regulations in 2002 was to provide clarity and consistency with

the VCAA, and a reading that creates such a contradictory situation, while simultaneously erecting

a new barrier to reopening, would be inconsistent with VA's own asserted purpose. Therefore,

§ 3.159(c)(4)(iii) must be read in light of the previous discussion of § 3.156(a).

When §§ 3.159(c)(4)(iii) and 3.156(a) are read together, it is clear that they do not create a

barrier to reopening but, as VA indicated in its comments in the Notice of Proposed Rulemaking,

provide clarity for claimants as to the procedure for reopening. Section 3.159(c)(4)(iii) guarantees

that, once new and material evidence has been presented as to an unestablished fact from the

previously denied claim, the claimant will be entitled to the full benefits of the Secretary's duty to

assist, including a medical nexus examination, if one is warranted. The purpose of requiring a

claimant to present new and material evidence before receiving a VA medical examination was to

protect VA's "finite resources." 66 Fed. Reg. 45628. As VA acknowledged, it has an obligation to

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assist veterans in substantiating their claims, but understandably must be cognizant of its material

limitations.

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 38 U.S.C. § 5103A(d)(2)(B).

In summary, the Secretary in exercising his rule-making authority provided that the words

"reasonable possibility of substantiating 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 § 3.156(a) in the present case it would permit VA to

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reestablish the outcome-based Colvin test criticized in Hodge and rejected by VA itself in its 2002

rulemaking. See 66 Fed. Reg. 17834-01; Hodge and Colvin, both supra.

The Court concludes that the Board misinterpreted the plain language of 38 C.F.R. § 3.156(a)

and failed to properly apply that regulation as VA intended. Here, the Board acknowledged that the

new evidence included a current diagnosis but concluded that this evidence "does not relate to an

unestablished fact necessary to substantiate this claim." R. at 11. As noted above, this evidence

did relate to an unestablished fact necessary to substantiate the claim; it was evidence of a current

diagnosis and the RO at that time stated that "[t]he private records and VA treatment records do not

indicate treatment for or diagnosis of a skin condition." R. at 262 (October 2003 SOC).

Accordingly, the Board's determination that the private doctor's report "does not relate to an

unestablished fact necessary to substantiate this claim" will be reversed. The Court also observes

that, in determining whether the evidence "raise[s] a reasonable possibility of substantiating the

claim" for the purpose of reopening, the Board should have reviewed all the evidence, newly

submitted and previously submitted, on the issue of nexus. The Court notes that, while the Board's

decision acknowledged the appellant's lay statements offered at his November 2007 hearing, the

Board determined that those statements were cumulative of evidence previously of record. R. at 11.

In the November 2007 hearing, however, the appellant testified that he had been treated for a skin

condition over a period of years. R. at 68. The appellant had not previously presented sworn

testimony, and this testimony relates to the appellant having symptoms of a skin condition over a

period of years for which treatment was needed, i.e., lay testimony that was relevant to the issue of

nexus. While it is the Board's role as the finder of fact to determine what weight to ascribe to the

appellant's lay statements, the Court reminds the Board that the credibility of "new" evidence is to

be presumed in making a reopening determination. See Elkins, 12 Vet.App. at 215.

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

(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

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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 that reversal is the appropriate remedy in cases in which the only permissible view

of the evidence is contrary to the Board's decision). On remand, the Board should consider the

merits of the appellant's reopened claim for service connection, including whether he is entitled to

a VA medical nexus examination applying a low threshold. See McLendon, supra. The appellant

is free to submit additional evidence and argument on the remanded matters, which the Board must

consider when readjudicating his claim. See Kay v. Principi, 16 Vet.App. 529, 534 (2002);

Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO

must provide expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B, 7112.

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.

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

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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 38 U.S.C. § 5103A(d). In cases where medical evidence is necessary

to prevail, the two standards are the same. In other words, if VA determines that the new evidence

when viewed with the old evidence would be sufficient to trigger a medical examination, then the

evidence is sufficient to reopen and a medical examination must be provided. Similarly, if the

evidence supporting the claim is insufficient to trigger the duty to assist when the old and new

evidence is considered together, then the new-and-material standard has not been met and the claim

should not be reopened. See 66 Fed. Reg. 45620-01, 45629 (Aug. 29, 2001) ("We believe it is fair

and reasonable to apply the same standard . . . in determining whether a claim has been reopened,

triggering VA's full duty to assist by providing a VA examination or obtaining a medical opinion.").

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 that is not tied

to a meaningful procedural duty.

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

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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.

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