Shade: New and Material Evidence Sufficient to Reopen a Claim

Shade: New and Material Evidence

The decision in William Shade v. Eric K. Shinkseki, Opinion Number 08-3548, decided November 2, 2010, involved whether new and material evidence existed sufficient to reopen a claim.

The decision is basically a study on the application of the new and material evidence standard. This standard is important because once a claim has been denied, it can only be reopened if the veteran submits new and material evidence. New and material evidence is evidence not previously submitted to the VA 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.

The decision is also complicated somewhat by a discussion of the history of 38 C.F.R. § 3.156(a) (which defines new and material evidence) in reference to the VCAA Act of 2000. Without dwelling on this point, the facts of the case were that the veteran was seeking to reopen a denied claim for service connection for a skin disorder. The claim had previously been denied on the basis that the veteran did not show a current diagnosis and lacked a medical nexus opinion linking the present disability to service. The veteran submitted an application to reopen his claim and submitted a current medical diagnosis from his private physician as well as his own sworn statement that he had had the skin disorder for years. The application to reopen was denied on the basis that he had not provided a medical nexus opinion.

The Court categorically rejected the VA’s finding that a medical nexus opinion was required to reopen and stated “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) [which mandates a duty to assist which includes a duty to provide a medical examination] would be rendered meaningless.” Id. at *14. The Court noted the new and material evidence standard is a low threshold and stated that the rule requires the VA to consider whether the new evidence “raises a possibility of substantiating the claim.

The concurring opinion by Judge Lance agrees but provides practical guidance by stating that if new evidence is neither cumulative or redundant, the VA should ask “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?” Id. at *19.

The Court also briefly discussed the VA’s rejection of evidence as cumulative. The veteran had made statements in a hearing and the VA had rejected the statements as cumulative of evidence previously in the record. The Court noted the veteran had never previously provided sworn testimony and that the testimony (he had had symptoms for many years) was relative to the issue of nexus. The Court noted the BVA’s role as fact finder but reminded it that the credibility of new evidence is to be presumed in making a reopening determination.

Decided by J. Hagel, Moorman, and Lance.