Citation Nr: 0301521 Decision Date: 01/27/03 Archive Date: 02/04/03 DOCKET NO. 02-03 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Associate Counsel INTRODUCTION The veteran had active service from July 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine (ME), reopening the veteran's claim of entitlement to service connection for a left shoulder disability and denying the claim on the merits. A videoconference hearing was held before the undersigned Board member in October 2002. The Board notes that, although the RO, in effect, reopened and re-adjudicated the veteran's claim of entitlement to service connection for a left shoulder disability, the United States Court of Appeals for Veterans Claims has made it clear that even if an RO makes an initial determination to reopen a claim, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7104(b) to review the RO's preliminary decision in that regard. Therefore, the Board will address this claim based on whether new and material evidence has been submitted to reopen it, and, for the reasons discussed below, finds that such action does not prejudice the veteran. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). The Board notes that having currently decided by way of the present Board decision that the veteran has in fact submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for a left shoulder disability, the Board will now undertake additional development with respect to the veteran's claim pursuant to authority granted by 38 C.F.R. § 19.9(a)(2) (2002). When development is completed, the Board will provide notice of the development as required by Rules of Practice 903. 38 C.F.R. § 20.903 (2002). After giving the notice and reviewing the veteran's and/or his representative's response, the Board will prepare a separate decision addressing the merits of the veteran's claim of entitlement to service connection for a left shoulder disability. FINDINGS OF FACT 1. In a May 1998 decision, the RO denied the veteran's claim of entitlement to service connection for a left shoulder disability on the merits. This was the last final disallowance of this claim. 2. Evidence added to the record since May 1998 includes evidence that is relevant and probative of the issue at hand and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim of entitlement to service connection for a left shoulder disability. CONCLUSION OF LAW Evidence submitted in support of the veteran's attempt to reopen his claim of entitlement to service connection for a left shoulder disability is new and material, and this claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board observes that recently enacted law (the Veterans Claims Assistance Act of 2000, hereinafter "the VCAA") and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim. These regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.159(c)-(d)) (2002). The VCAA and its implementing regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West 1991 & Supp. 2002); 38 C.F.R. § 3.159(b) (2002). The Board notes that the regulations implementing the VCAA include a revision of 38 C.F.R. § 3.156, but points out that the revised version of 38 C.F.R. § 3.156(a) is only applicable to claims filed on or after August 29, 2001. See 66 Fed. Reg. 45620-45632 (August 29, 2001). As noted below, the veteran's application to reopen his claim of entitlement to service connection for a left shoulder disability was filed prior to this date, and as such, the version of 38 C.F.R. § 3.156(a) in effect prior to August 29, 2001, is for application. That notwithstanding, the regulations implementing the VCAA do not otherwise create an exception to the applicability dates with respect to VA notification in cases of claims to reopen a finally decided claim. 66 Fed. Reg. 45,620. Hence, it is well to observe that the VCAA and its implementing regulations include an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, which does apply to the veteran's application to reopen the claim of service connection. 38 U.S.C.A. § 5103 (West Supp. 2002); 38 C.F.R. § 3.159(b) (2002). In this case, the RO considered the claim on appeal subsequent to the above-noted changes in the law and implementing regulations. The Board is not precluded from proceeding to an adjudication of the veteran's petition to reopen his claim of entitlement to service connection for a left shoulder disability without first remanding it to the RO, as the requirements of such authority have been satisfied. Specifically, it is noted that the record reflects that VA has made reasonable efforts to notify the veteran of the information and medical evidence necessary to substantiate his claim. The veteran was issued a statement of the case in February 2002. The veteran also was issued a letter by the RO in August 2001 which essentially explained, among other things, the duty to assist under the VCAA. These documents essentially provided the veteran notice of the law and governing regulations as well as the reasons for the determinations made regarding his claim. The record on this claim also shows that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. VA has obtained the veteran's service and VA medical records and private medical records from Maine Medical Center, Portland, ME (hereinafter, "Maine Medical Center"); Dr. C.N.B., M.D., F.A.C.S., Taunton, ME (hereinafter, "Dr. C.N.B."); Dr. J.P.H., D.O. (hereinafter, "Dr. J.P.H."); and Dr. C.C., M.D., Portland, ME (hereinafter, "Dr. C.C."). Hence, the veteran has been provided notice of the information and evidence necessary to substantiate his claim and has been afforded ample opportunity to submit such information and evidence. Moreover, VA has conducted reasonable and appropriate efforts to assist him in obtaining the evidence necessary to substantiate this claim. Accordingly, the Board is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 38 C.F.R. § 3.159(b) (2002). Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a left shoulder disability In a February 1984 decision, the RO denied the veteran's original claim of entitlement to service connection for a left shoulder disability. This decision was not appealed. Hence, the decision is final. See 38 U.S.C.A. § 7105 (West 1991 & Supp. 2002); 38 C.F.R. § 3.104(a), 20.302, 20.1103 (2002). The RO again denied the veteran's claim of entitlement to service connection for a left shoulder disability in May 1998, finding that the veteran had not submitted new and material evidence sufficient to reopen this claim. The veteran's subsequent appeal was dismissed as untimely, because it was filed after the expiration of the appeals period. Therefore, this decision also is final. See 38 U.S.C.A. § 7105 (West 1991 & Supp. 2002); 38 C.F.R. § 3.104(a), 20.302, 20.1103 (2002). Final decisions are not subject to revision on the same factual basis. If, however, "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. See 38 U.S.C.A. § 5108 (West 1991 & Supp. 2002). "New and material" evidence is evidence not previously submitted, not cumulative or redundant, and which by itself, or along with evidence previously submitted, is so significant that it must be considered to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (a) (2001); Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998); see also Evans v. Brown, 9 Vet. App. 273 (1996). As relevant to this claim, the newly considered evidence includes a letter from Dr. C.C. dated March 2001, a VA examination dated June 2001, an Emergency Physician Record from Maine Medical Center dated August 2001, and statements made by the veteran and his designated service representative at the hearing in this claim. The veteran submitted a letter dated March 2001 by Dr. C.C. that related his medical history and, on the basis of this history, Dr. C.C. stated her belief that the veteran's shoulder injury had occurred during basic training, that he had an exacerbation of it during service, and therefore it was service related According to the VA examiner who saw the veteran in June 2001, although the veteran did not describe any swelling, increased heat, or redness, instability, giving way, or locking, pain was the primary presenting symptom at the time of this examination. The examiner stated that he had reviewed the veteran's case folder and service medical records which outlined very definitely that the veteran had recurrent left shoulder dislocation prior to service which was corrected in large part by a Putti-Platt reconstructive procedure that effectively corrected the recurrent dislocation, as the shoulder had not been dislocated since that time. The examiner also noted that a review of the veteran's service medical records indicated that he had had recurrent problems with his left shoulder in service, particularly with any activity that required overhead use of the shoulder, that overhead ladder training (pulling from one rung to the other) had been particularly bothersome, that he had had several duty profiles assigned to him preventing any push-ups, pull- ups, and the like, but that he had completed his tour of duty though often with duty restrictions. According to the VA examiner in June 2001, the veteran continued to experience ongoing problems following his discharge from the military, was presently employed as s social worker, but did not require laborious work using his shoulder. However, the examiner noted that, even without occupational-related problems, the veteran stated that he had had increasing problems (with his shoulder) which he described as a constant low-grade ache over the left shoulder even while at rest which he graded as a 2 out of 10, increased pain on any activity or use of the shoulder above the shoulder or working around the house, difficulty in bed at nighttime with frequent awakenings, particularly if he lay on his left side, severe knife-like pain shooting down the arm to the hand when the shoulder was bumped while he was on the job. The examiner noted the veteran's medical history included a report of no flare-ups, that he had been seen by the orthopod in February 2001 and was diagnosed at that time with calcific bursitis/tendonitis, that he had been given a steroid injection which did not help, that he had been receiving weekly physical therapy (PT) as prescribed by the orthopod, that he stated that the PT had helped a bit but with any activity the pain recurred significantly, that he had not had any additional surgery, and that there had been no recurrent episodes of dislocation or subluxation. Physical examination of the veteran in June 2001 revealed a well-healed surgical scar overlying the anterior shoulder and exquisite tenderness at the anterior portion of the shoulder at the greater tuberosity. Range of motion actively flexed from 0 to 50 degrees comfortably and to 90 degrees with increasing pain, passively from 0 to 70 degrees comfortably and to 90 degrees with increasing pain. Abduction was from 0 to 30 degrees comfortably and to 70 degrees with increased pain, passively from 0 to 30 degrees comfortably and to 80 degrees with increased pain. Internal rotation actively and passively was from 0 to 70 degrees comfortably, and external rotation actively and passively was from 0 to 50 degrees with pain at the end point, and with some muscle wasting of the deltoid and biceps noted as well. The examiner reviewed x-rays that revealed calcific deposits of the subdeltoid bursa as well as calcific tendonitis. The examiner's assessment was subdeltoid bursitis/calcific tendonitis, left shoulder and status post successful Putti-Platt reconstructive surgery for recurrent dislocation unrelated to the subdeltoid bursitis/calcific tendonitis, left shoulder. The examiner commented that the veteran had had a successful Putti-Platt reconstruction to prevent further recurrent dislocation and had had no recurrent dislocation, but rather had a different pathologic problem in the shoulder - calcification of the bursa and tendon unrelated to the veteran's pre-active duty problem. In the Emergency Physician Record from Maine Medical Center, dated August 2001, it was noted that the veteran's chief complaint on admission to the emergency room at that time was left shoulder pain, the pain scale number recorded was 8 out of 10, the pain was from an old surgery and multiple injuries over the last 30 years, and that it was worse. The veteran's reported medical history included, among other things, chronic left shoulder pain, shoulder surgery 30 years earlier, episodes of left shoulder pain that occurred 6 to 7 times a month, that these episodes were severe, exacerbated by movement, and not relieved by anything, and chronic regional pain syndrome. Physical examination revealed, among other things, that the veteran was in mild distress with constant tenderness and pain reported in the left shoulder, negative pulses, a slight decrease in sensation, and limited range of motion both active and passive due to pain, and that the veteran easily reproduced his pain on palpation. X-rays were taken and the results were negative. The primary assessment by the triage nurse was chronic pain, worse in the left shoulder and arm at the time of admission. The clinical impression was chronic pain with a question of whether it was neuropathic, and the veteran was discharged home in stable disability with medication for his pain. In the October 2002 hearing on this claim, the veteran testified that there was "no doubt" that his current left shoulder disability, diagnosed by the VA examiner in June 2001 (as noted above), had started while he was in service. Further, both the veteran and his representative specifically pointed to the VA examiner's June 2001 medical opinion as new and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for his current left shoulder disability. Upon a review of the newly submitted evidence, the Board finds that new and material evidence has been received sufficient to reopen the veteran's claim of entitlement to service connection for a left shoulder disability. This evidence is not only new, but is also material because it provides evidence that the veteran suffers from a left shoulder disability that could have had its onset in service. Thus, this evidence is relevant and probative to the issue at hand and is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (2001). Having determined that new and material evidence has been added to the record, the veteran's previously denied claim of service connection for a left shoulder disability is reopened. See 38 U.S.C.A. § 5108 (West 1991 & Supp. 2002); 38 C.F.R. § 3.156(a) (2001). ORDER New and material evidence having been submitted on the issue of entitlement to service connection for a left shoulder disability, this claim is reopened. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.