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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
EDDIE L. OLIVER, APPELLANT,
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Eddie L. Oliver appeals through counsel a March 12,
2019, Board of Veterans’ Appeals (Board) decision that denied reopening of a claim for entitlement to service connection for a back condition. Record (R.) at 5-11. For the reasons that follow, the Court will reverse the Board’s finding that the veteran did not submit new and material evidence sufficient to reopen the claim for service connection for a back condition and remand the matter for readjudication consistent with this decision.
Mr. Oliver served honorably on active duty for training (ACDUTRA) from June to August
1980 (basic training) and from July to August 1981 (training as a laundry and bath specialist) with
additional periods of inactive duty for training as a member of the U.S. Army Reserves. R. at 714-
1 The exact date of the end of Mr. Oliver’s Reserve service is unclear from the record of proceedings. Both
parties state that Mr. Oliver left the Reserves in September 1985, Appellant’s Brief (Br.) at 1, Secretary’s Br. at 2,
which matches the DD Form 214s issued after each period of ACDUTRA, R. at 714-15. But this conflicts with Reserve
records demonstrating assignments as late as April 1989, R. at 804, and Mr. Oliver’s own statement that he left the
Reserves in July 1993, R.
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Single Judge Application; VA Form 21-4142; RO failed to obtain private medical records on his behalf; "new and material evidence" standard remains applicable for claims to reopen decided prior to February 19, 2019. 38 C.F.R. § 3.156(a); Federal Circuit held in 2018 that pain in the absence of a presently diagnosed condition could, under certain circumstances, qualify as a disability, Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); the governing law in 2008 was that pain alone could not constitute a disability, Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999); evidence submitted after the January 2008 RO decision clearly demonstrated the existence of a current disability; Board's conclusion that the newly submitted evidence was not material to an unestablished element needed to substantiate the claim is clearly erroneous;
Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 19-2425EDDIE L. OLIVER, APPELLANT,V.ROBERT L. WILKIE,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before BARTLEY, Chief Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Chief Judge: Veteran Eddie L.