Rivera v. Wilkie
| Decision Date | 31 January 2020 |
| Docket Number | 18-6210 |
| Parties | Walterio Rivera, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Judy J. Donegan, Esq. VA General Counsel (027)
Before TOTH, Judge.
Veteran Walterio Rivera served in the Navy from 1970 to 1971. He appeals a July 16, 2018, Board decision that declined to reopen previously denied claims for service connection for a low back disability and a right shoulder disability. For the following reasons, the Court vacates the Board's decision regarding the right shoulder disability and remands the claim for readjudication. The Court affirms the Board's denial of the veteran's low back disability claim.
Mr Rivera filed his claim for a right shoulder disability in March 2014. VA denied the claim in August of the same year for lack of a nexus between his shoulder disability and service. In May 2015, prior to the expiration of his appeal period, Mr. Rivera asked VA to consider new evidence including service treatment records (STRs) and a statement from his private physician. See 38 U.S.C. § 7105(b)(1); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014) ().
At the time, the regulation provided: "New and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b) (2015). When evidence is submitted within the appeal period, a claim remains pending until VA provides a determination "directly responsive to the new submission"-i.e addresses whether the submitted evidence is new and material. Beraud, 766 F.3d at 1407. VA responded to the submission by reopening the claim and considering the evidence. But it ultimately confirmed and continued its decision to deny the claim for service connection.
Mr. Rivera appealed to the Board. Instead of treating the issue as one of entitlement to service connection for a right shoulder disability, the Board considered whether Mr. Rivera's claim for service connection should be reopened based on the submission of new and material evidence. This was error. As the Secretary concedes, this evidence should have been "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b). So, this claim must be remanded for consideration on the merits.
The Board conducted the same analysis as to the low back disability. But as to that matter, it was appropriate. The veteran initially filed a claim for this condition in 2005. VA denied the claim for lack of a nexus between his current disability and service, finding that the veteran had injured his back post-service. In 2006, after the veteran submitted additional evidence, VA again denied service connection. That decision was not appealed and became final.
Alongside his original March 2014 claim for service connection for his right shoulder disability, Mr. Rivera asked the agency to reopen the 2006 decision for his low back disability. It does not appear that he submitted any evidence contemporaneously with his claim to reopen. And, although VA later solicited such evidence, none was received. See R. at 1203. Accordingly, VA denied the request to reopen his claim in August 2014. In May 2015, however, Mr. Rivera submitted reports from his private doctors. Because these reports were received within one year of the previous August 2014 decision, VA considered the reports but confirmed and continued the denial of his request to reopen the 2006 claim.
He appealed, and the Board also denied the claim to reopen. It reviewed the 2006 decision and determined that VA had denied the claim for lack of a nexus, in part, because the veteran had injured his back post-service. The evidence before the agency at the time of the 2006 decision included STRs, VA treatment records dating back to 1974, and the veteran's lay assertions. The Board found that the newly submitted evidence included duplicate pages from his STRs that were previously considered and a statement from his doctor, which merely relayed the veteran's assertion that he injured his cervical spine during service and has had low back pain ever since. The Board concluded that the newly submitted evidence was duplicative of evidence already considered.
Veterans "may seek to reopen a final decision by submitting new and material evidence." Turner v. Shulkin, 29 Vet.App. 207, 211 (2018) (citing 38 C.F.R. § 3.156(a)). The Board's assessment of whether evidence is "new and material" is a factual determination reviewed for clear error. See Hill v. McDonald, 28...
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