Citation Nr: 0812464 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 07-07 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a right shoulder disorder. 5. Whether new and material evidence has been received to reopen a claim of service connection for a left shoulder disorder. 6. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1971 to March 1974. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The case in now under the jurisdiction of the Fort Harrison, Montana, RO. In March 2008, a videoconference hearing was held before the undersigned; a transcript of that hearing is of record. The issues of entitlement to service connection for bilateral hearing loss and tinnitus, and whether new and material evidence has been received to reopen claim for service connection for a right knee disability, are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. At the March 2008 hearing, prior to the promulgation of a decision in the appeal, the appellant notified the Board that he intended to withdraw his appeal seeking service connection for PTSD and a right shoulder disability; he subsequently submitted a written statement to the Board to this effect; there is no question of fact or law remaining before the Board in these matters. 2. A December 1975 rating decision denied service connection for a left shoulder disorder, finding essentially that the veteran did not have such disability. 3. Evidence received since the December 1975 rating decision includes a private physician's statement suggesting that the veteran has history of left shoulder dislocation and suspected chronic rotator cuff tear and impingement syndrome; it bears directly upon the basis for the previous final denial, and raises a reasonable possibility of substantiating the claim. 4. A chronic left shoulder disorder was not manifested in service, and the preponderance of the evidence is against a finding that the veteran's current left shoulder disorder is related to his service or to symptoms noted therein. CONCLUSIONS OF LAW 1. Regarding the claims of service connection for PTSD and a right shoulder disability, the criteria for withdrawal of a Substantive Appeal are met; the Board has no further jurisdiction in these matters. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. New and material evidence has been received, and the claim of service connection for a left shoulder disorder may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a)(2007). 3. Service connection for a left shoulder disorder is not warranted. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters PTSD and Right Shoulder Disability The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During testimony at the March 2008 videoconference hearing, and in a written statement subsequently received at the Board, the veteran stated that he wished to withdraw his appeal seeking service connection for PTSD and a right shoulder disability. Hence, there is no allegation of error of fact or law for appellate consideration in these matters, and the Board does not have jurisdiction to consider an appeal in the matters. II. Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of his claim in a letter dated in January 2005. That letter explained what the evidence needed to show to substantiate the claim. It also explained that VA was responsible for obtaining relevant records from any federal agency, and that VA would make reasonable efforts to obtain records not held by a federal agency, but that it was the veteran's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. While the letter did not fully explain what kind of evidence would be new and material to reopen his previously denied claim for service connection for a left shoulder disability, there is no prejudice to the veteran as the Board is reopening the claim. Kent v Nicholson, 20 Vet. App. 1 (2006). In a March 2006 letter, the veteran was provided notice regarding criteria for increased ratings and effective dates of awards (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, such notice is not critical because the rating of a disability and effective date of an award have no significance when service connection is denied. While complete VCAA notice was not given prior to the rating on appeal, the appellant had ample opportunity to respond to the notice letter and the statement of the case and to supplement the record after notice was given. He is not prejudiced by any technical notice deficiency that may have occurred along the way, and no further notice is required. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Regarding VA's duty to assist, the RO has obtained the veteran's service medical records (SMRs), along with VA medical evidence. The veteran was afforded a VA examination in March 2006 (and an addendum examination report was issued in July 2006). He has not identified any additional evidence pertinent to the claim. VA's assistance obligations are met. The veteran is not prejudiced by the Board's proceeding with appellate review of the left shoulder claim. III. Factual Background, Legal Criteria and Analysis A December 1975 rating decision denied service connection for a left shoulder disorder, finding essentially that the veteran did not have a current left shoulder disability. He did not file a notice of disagreement with that decision and it became final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective for all claims to reopen filed on or after August 29, 2001. [The instant claim to reopen was filed after that date (in December 2004), and the revised definition applies.] "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Regarding materiality, the Court has held that the newly presented evidence need not be probative of all the elements required to award the claim but that the evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Reopening of the Claim Evidence received since the December 1975 rating decision includes a private physician's statement dated in June 2005 suggesting that the veteran has history of left shoulder dislocation and suspected chronic rotator cuff tear and impingement syndrome. Because this evidence indicates that the veteran now has a left shoulder disability, it bears directly upon the basis for the previous final denial, and raises a reasonable possibility of substantiating the claim. Accordingly, the evidence is new and material and the claim seeking service connection for a left shoulder disorder may be, and is, reopened. De Novo Review At the outset, the Board finds that the appellant is not prejudiced by its de novo review of this claim without returning it to the RO for initial de novo consideration upon reopening. The RO already essentially adjudicated the matter on the merits in its January 2008 supplemental statement of the case before the appeal was certified for Board review. It also developed medical evidence on the question in the form of the March 2006 VA examination. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110. In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The veteran's SMRs show that he complained of left shoulder trouble during basic training in March 1971. Rule out dislocation was noted as was "previous history of pulled shoulder." The examiner noted decreased range of motion in all directions, no palpable subluxation. X-ray was negative. In August 1972, the veteran complained of chronic left shoulder pain. The impression was possible subluxing shoulder with chronic tenosynovitis. In October 1973, he again reported left shoulder pain and was placed on a profile. On service separation examination in February 1974, the veteran reported left shoulder pain. The report of medical examination noted that the shoulder was evaluated; upper extremity examination was noted as normal. On VA examination in October 1975, the examiner noted left shoulder joint tender anteriorly. There was no deformity and normal full range of motion. X-ray of the left shoulder was normal. The diagnosis was left shoulder injury by history only. A June 2005 private medical report noted the veteran's reported history of left shoulder dislocation in basic training as well as increasing problems over time particularly with overhead activities. Examination showed painful abduction past 90 degrees. The diagnosis was "[h]istory of left shoulder dislocation. I suspect chronic rotator cuff tear and impingement syndrome." On VA examination in March 2006, it was noted that the examiner reviewed the claims folder in conjunction with the examination. The veteran reported ongoing left shoulder pain since service. On examination, there was no erythema, swelling, tenderness or warmth of the left shoulder. There was popping of the shoulder with movement, and movement beyond 110 degrees with flexion or abduction was slow. The diagnosis was left shoulder rotator cuff tendonitis. In an addendum report dated in July 2006, the examiner stated that the record was negative for left shoulder complaints from 1975 to 2004, and that the veteran worked as a ranch hand and construction worker during this period which was likely associated with repetitive lifting/overhead activity. It was her opinion that the veteran's current left rotator cuff tendonitis was more likely than not related to his occupation and not to possible shoulder dislocation/subluxation during service. "If his shoulder condition (instability or subluxation) became a chronic problem, then the manifested problems would likely be that of instability rather than difficulty with overhead use or that of a torn rotator cuff." The veteran has a current diagnosis of left shoulder disability; the March 2006 VA examination produced a diagnosis of left shoulder rotator cuff tendonitis. The evidence also establishes that he had a left shoulder injury in service as the service medical records note a suspected separation of the shoulder as well as a diagnosis of possible subluxing shoulder with chronic tenosynovitis. However, there is no competent evidence of record indicating a relationship between the injury in service and the veteran's current left shoulder disability. To the contrary, the March 2006 VA examiner (in the July 2006 addendum report) specifically opined that it was less likely than not that the veteran's current left shoulder pathology was related to his complaints in service. The veteran alleges that his current left shoulder disability became manifest in service, and that he has had ongoing problems with the shoulder since service. While he is competent to testify to his symptoms, as a layperson, his allegations are not competent evidence of a diagnosis or of a medical nexus. "Where the determinative issue involves medical causation competent medical evidence is required." See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Given that there is no objective evidence of left shoulder complaints between 1975 and 2004, and no competent evidence of record of a nexus between left shoulder injury in service and current left shoulder disability; and that a VA medical opinion specifically indicates that it is less likely than not that such a nexus exists, the preponderance of the evidence is against a finding of service connection. The preponderance of the evidence is against this claim and it must be denied. ORDER The appeal seeking service connection for PTSD is dismissed. The appeal seeking service connection for a right shoulder disability is dismissed. The claim of service connection for a left shoulder disorder is reopened; but service connection for this disability is denied on de novo review. REMAND The veteran contends that he has hearing loss and tinnitus that he believes are attributable to noise exposure in Vietnam, and in particular from his duties in destroying surplus ammunition. He testified that he has undergone yearly physical examinations, which included hearing tests, in his employment with the General Services Administration (GSA), beginning in approximately 1990. Records of such hearing examinations may be relevant to his claims of service connection for hearing loss and tinnitus. An audiological evaluation to determine the likely etiology of his hearing loss and tinnitus is also necessary. The veteran's claim for service connection for a right knee disability was denied in a December 1975 rating decision, essentially based on a finding that a right knee disability preexisted service and was not aggravated therein. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that in a claim to reopen notice to the claimant must include notice of the evidence and information that is necessary to reopen the claim, to include what would constitute such evidence (and that a failure to notify what would constitute new and material evidence constituted prejudicial error). While the veteran has received notice of what is necessary to substantiate the underlying claim of service connection for a right knee disorder, he was not provided the specific notice required, under Kent, in claims to reopen. Additionally, at the hearing before the undersigned, the veteran indicated that he would attempt to obtain a private medical opinion addressing aggravation of his right knee disability. He should be given the opportunity to submit such evidence. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain from the GSA complete records of examinations showing testing of the veteran's hearing since 1990. The veteran must assist in this matter by providing any necessary releases. 2. The RO should then arrange for the veteran to be scheduled for a VA audiological evaluation to determine the likely etiology of his bilateral hearing loss and tinnitus. The veteran's claims file must be reviewed by the audiologist in conjunction with the examination. Based on review of the claims file, and evaluation of the veteran, the examiner should opine whether it is at least as likely as not (50% or better probability) that the veteran's bilateral hearing loss disability and/or tinnitus are related to his service to include noise exposure therein. The examiner must explain the rationale for the opinion. 3. Regarding the petition to reopen a claim of service connection for a right knee disability, the RO should provide the veteran the notice necessary in claims to reopen in accordance with Kent, supra (to include an explanation of the basis for the previous denial of the claim and examples of the types of evidence that would be considered new and material). The veteran should have ample opportunity to respond, including providing any private medical opinion he may obtain regarding inservice aggravation of a preexisting right knee disorder. The RO should arrange for any development suggested by his response. 4. The RO should then re-adjudicate the claims of entitlement to service connection for bilateral hearing loss and tinnitus, and whether new and material evidence has been received to reopen a claim of service connection for a right knee disability. If any remains denied, the RO should issue an appropriate supplemental SOC and give the appellant and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs