Citation Nr: 0811015 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-26 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a chronic upper extremity disability, left arm and left shoulder. 2. Entitlement to service connection for a chronic upper extremity disability, left arm and left shoulder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran had active service from November 1955 to September 1957. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2004 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Atlanta, Georgia, that denied reopening of the claim. A RO Decision Review Officer determined new and material evidence was submitted, reopened the claim but denied it on the merits. The veteran indicated on his July 2005 Substantive Appeal (VA Form 9) that he desired a Board hearing at the Board's Central Offices in Washington, DC. An undated Board letter asked him to clarify whether he still desired a Board hearing, but it was returned by the U.S. Postal Service due to the post office box to which it was addressed having been closed. No forwarding address was provided by the Postal Service. The Board notes that its administrative offices did not use the veteran's mailing address as shown on the August 2005 Appointment of Individual As Claimant's Representative (VA Form 21-22a), nor was a copy of the Clarification Letter mailed to the veteran's attorney. Nonetheless, in light of the Board's action below, further attempts to contact the veteran regarding his request for a hearing are not necessary, as the immediate benefit sought is allowed below. The Board has received additional evidence from the veteran, for which he waived initial RO review and consideration. In light of the veteran's waiver, the Board may properly consider the evidence in this decision. 38 C.F.R. § 1304 (2007). In the decision below, the Board reopens the claim for service connection for a chronic upper extremity disability, left arm and left shoulder, on the basis of new and material evidence. The Board will then remand the claim to the RO via the Appeals Management Center (AMC) for further development and readjudication on the merits, i.e., on a de novo basis. FINDINGS OF FACT 1. A July 1986 rating decision denied service connection for pain in the left shoulder and arm. It was held that the pathology had pre-existed his entry into service and was not aggravated by his service. He was notified of this decision. In the absence of an appeal, this decision is final. 2. The evidence received since the July 1986 rating decision, by itself, or when considered with the previous evidence of record, does relate to an unestablished fact necessary to substantiate the claim for service connection for a left upper extremity disorder and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The July 1986 rating decision is final. New and material evidence sufficient to reopen a previously denied claim for service connection for a left upper extremity disorder has been received. 38 U.S.C.A. §§ 5103, 5103A(d)(2)(f), 5108, 7105 (West 2002 and Supp. 2007); 38 C.F.R. § 3.156(a), 3.159 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In light of the fact the Board reopens the veteran's claim below, it would serve no useful purpose to discuss compliance with the VCAA at this stage of the proceedings. Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Further, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If a pre- existing disorder is "noted" on entering service, the veteran has the burden of showing an increase in disability during service. If the veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner, 370 F.3d at 1096. There is no aggravation of a preexisting disease or injury if the condition underwent no increase in severity during service on the basis of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Also, intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). Original Adjudication The August 1955 Report Of Medical Examination For Pre- Induction notes the veteran's upper extremities were assessed as abnormal. Specifically, he complained of an injury to both shoulders five years earlier. The examiner noted that physical examination revealed no limitation of motion or crepitation and that function was good. August 1955 X-rays were interpreted as having shown no abnormality of either shoulder joint or sterno-clavicular articulation. The impression was that the joints were normal. He was accepted for active service. Service medical records note the veteran's presentation in December 1955 for upper respiratory complaints, for which he was admitted. The examiner noted chronic sterno-clavicular separation by history, and that the veteran had experienced difficulties while on duty. He was referred to the Orthopedic Clinic. The January 1956 Consultation Sheet noted the veteran sustained an acromioclavicular joint separation in 1948, and that it was still sore. The orthopedist noted the veteran told him he sustained the separation in Washington, DC, and that he had a letter from a doctor to prove it. The orthopedist noted that examination of the shoulders was essentially negative. There was full range of motion with some gross crepitation about the superior angle of the left shoulder. X-rays of the day before were read as normal. The diagnosis was voluntary crepitation of the left shoulder which, the examiner opined, would not interfere with the veteran's duties. The September 1957 Report Of Medical Examination For Release From Active Duty noted no abnormalities, other than a scar on the right hand. The upper extremities were assessed as normal, and the veteran was deemed physically fit for separation. The veteran submitted his initial claim for left shoulder and left arm pain in May 1986. He indicated on his formal application that he was treated for the pain while in active service, and he submitted a private doctor's statement in support of his claim. A November 1955 report of Dr. Myers noted that he treated the veteran prior to his entry into active service for a separation of the clavicular junction, and that it had not shown improvement. In light of that assessment, he opined that the veteran was not fit for military service. A December 1955 report of Dr. Goodwyn noted that he treated the veteran in 1948 for an injury to his left clavicle and to a lesser extent, the left acromioclavicular joint. He noted that the veteran's injury entailed stretching of the acromio- sternal ligaments, with some subluxation of that joint. Dr. Goodwyn noted the veteran had presented the day of his report for a recheck and X-ray due to pain and numbness of his left hand. He noted that the X-ray of the left clavicle was negative for bone pathology, and that examination showed marked crepitation in the acromioclavicular joint, with the probability he was developing some mechanical arthritis. Dr. Goodwyn advised against surgery and recommended the veteran take Pabalate tablets to eliminate the pain. Also on file at the time of the earlier adjudication was a VA examination conducted in October 1962. At that time no pertinent complaints were recorded and the joints were all noted to be normal on examination. The July 1986 rating decision reviewed all of the above evidence and determined that the veteran's noted pre-existing left shoulder and arm disorder was not aggravated beyond normal progression during his active service. A July 1986 RO letter notified the veteran of the decision and of his appeal rights. The claims file contains nothing to indicate that the veteran did not receive the July 1986 decision letter, or any record that the U.S. Postal Service returned it to VA as undeliverable. Neither is there any record of his having submitted a timely Notice of Disagreement with that decision. Thus, the July 1986 decision became final and binding on the veteran. New and Material Evidence Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). "New" evidence means more than evidence that has not previously been included in the claims folder. 38 C.F.R. § 3.156. See Evans v. Brown, 9 Vet. App. 273, 284 (1996), wherein the Court Of Appeals For Veterans Claims (Court) held that the question of what constitutes new and material evidence requires referral only to the most recent final disallowance of a claim. The evidence, even if new, must be material, in that it is evidence not previously of record that relates to an unestablished fact necessary to establish the claim, and which by itself or in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). The Court has further held that, in determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed for the purposes of reopening. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. Id; Justus v. Principi, 3 Vet. App. 510 (1992). Analysis As noted above, a Decision Review Officer determined the veteran had submitted new and material evidence and reopened the claim, as noted in the Statement of the Case, and adjudicated it on the merits. Nonetheless, the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001). Thus, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. The evidence added to the record since the July 1986 decision consists of the veteran's written submissions and the opinions from two physicians submitted by the veteran. In a December 2004 report, one physician noted he/she reviewed records provided by the veteran, which include X-rays taken at the time of his induction. The veteran told the doctor that he injured his left shoulder while in basic training and subsequently started to have increased shoulder pain. More recent X-rays, noted the doctor, showed changes consistent with chronic rotator cuff tear. The doctor noted that, while X-rays at induction showed a normal shoulder, X-rays taken during his active service began to show problems. On that basis, the doctor opined it appeared the veteran's pre- existing left shoulder injury was exacerbated during his military service. A July 2005 report of Dr. Lippitt notes the veteran's history as told him by the veteran, and that the veteran injured his acromioclavicular joint in basic training. He opined, with reasonable medical certainty, the reported 1955 injury was most likely the etiology of the veteran's current chronic rotator cuff tear secondary to degenerative changes in the distal acromion and the acromioclavicular joint. The nexus opinions of these doctors do not merit any discussion at this stage of the proceedings, as they are presumed credible in determining the immediate issue. Suffice it to say the opinions constitute both new and material evidence, as they raise a reasonable possibility of establishing the claim. 38 C.F.R. § 3.156(a). Thus, the benefit sought on appeal is allowed to that extent. ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for a chronic upper extremity disability, left arm and left shoulder, and the petition to reopen the claim is granted. The appeal is allowed only to that extent. REMAND The Decision Review Officer, after reopening the veteran's claim, determined that there was no underlying factual basis for the doctor's opinions and accorded them no substantive weight on the merits of the claim. This determination was made without affording the veteran a VA examination. There is no legal impediment to such an adjudicative determination on the merits, provided the claim is sufficiently developed. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for the duty to get an examination is rather low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the state of the service medical records, the opinions of the doctors, and the low threshold for an examination, however, the Board deems a VA examination is indicated, as appropriate medical authorities should examine the veteran and comment on the efficacy of the medical opinions of record. It is noted that most recently appellant has contended that the pre-service injury involved the clavicle and the shoulder joint itself was first injured in service. This matter should be addressed by the examiner. Accordingly, the case is REMANDED for the following actions: 1. Please send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally steps should be undertaken to ascertain if the appellant still wants a hearing, and if so, where. 2. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his left shoulder and left arm disorder, to the extent not already provided. After securing the necessary release, the RO should obtain any treatment records not already associated with the claims file, including any ongoing VA treatment records. 3. After the above is complete, RO shall arrange an appropriate VA examination of the veteran, by a physician who has not previously examined him, to determine the etiology of the veteran's left upper extremity disorder. The claims folder should be made available to the examiner for review as part of the examination. a. Initially the examiner should ascertain what the nature of the pre- service disorder actually was, to include whether it involved the clavicle and/or the shoulder joint with subluxation. b. Is there evidence of shoulder pathology that more likely than not (greater than 50 percent chance) had its onset in service? c. Request the examiner to render an opinion as to whether there is at least a 50-50 probability that any pre-service left upper extremity disorder increased in severity during his active service. If so, was any increase in severity due to the rigors of the veteran's active service or clearly and unmistakably due the natural progression of the pre- existing stretching of the left acromio- sternal ligaments and subluxation of that joint. If the examiner determines that the veteran's pre-existing left upper extremity disorder did not increase in severity during his active service, is there is at least a 50-50 probability that any currently diagnosed left upper extremity disorder is otherwise related to his active service. d. The examiner should comment specifically on the opinions of the doctors on file and indicate agreement or disagreement with their opinions. Any opinion should be fully explained and the rationale provided. 4. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Then the RO/AMC should readjudicate the veteran's claim in light of the additional evidence obtained. If the claim is not granted to his satisfaction, send him and his representative a Supplemental Statement of the Case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The case should then be returned to the Board for further appellate consideration. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs