Citation Nr: 0812498 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 07-16 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen the veteran's previously denied claim of service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from September 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which declined to reopen the veteran's previously denied claim of service connection for a left shoulder disability. The veteran's claims file was subsequently transferred to the Los Angeles RO. Service connection for a left shoulder disability was previously denied in an October 2001 rating decision. Upon a request to reopen, the claim was again denied in an April 2003 rating decision with a finding that no new and material evidence had been received to reopen the previously denied claim. The veteran did not appeal the April 2003 decision. Before the Board may consider the merits of a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. "[T]he Board does not have jurisdiction to consider a claim which [has been] previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find." See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Further, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Accordingly, the matter appropriately before the Board is whether new and material evidence has been presented to reopen the previously denied claim of service connection for a left shoulder disability. In September 2007, the veteran appeared and testified at a Travel Board hearing at the Los Angeles RO. A transcript is of record. The issue of entitlement to service connection for a left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The RO initially denied entitlement to service connection for a left shoulder disability in October 2001. The veteran was notified of the decision and of his appellate rights, but did not appeal the denial. 3. In April 2003, the RO declined to find that new and material evidence had been received to reopen the veteran's previously denied claim of service connection for a left shoulder disability. The veteran was notified of the decision and of his appellate rights, but did not appeal the denial. 4. Since April 2003, new and material has been received to reopen the veteran's previously denied claim of service connection for a left shoulder disability. CONCLUSION OF LAW Evidence obtained since the RO declined to reopen the veteran's claim of entitlement to service connection for a left shoulder disability is new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. In this case, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with this appeal given the favorable nature of the Board's decision regarding reopening the veteran's claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran was initially denied service connection for a left shoulder disability in an October 2001 rating decision. The RO found, inter alia, that there was no evidence of a current left shoulder disability. In December 2002, the veteran sought to reopen his claim. In April 2003, the RO declined to reopen the veteran's previously denied claim of service connection for a left shoulder disability finding new and material evidence had not been received to reopen the claim. The veteran was advised of the denial of benefits and of his appellate rights, but did not appeal the decision. As such, it became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to an application submitted in January 2005, the veteran seeks to reopen his previously denied claim of service connection for a left shoulder disability. Generally, where prior RO decisions have become final, they may only be reopened through the receipt of new and material evidence. 38 U.S.C.A. § 5108. Where new and material evidence is presented or secured with respect to claims which have been disallowed, the Secretary shall reopen the claims and review the former dispositions of the claims. Evidence presented since the last final denial will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). New and 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. 38 C.F.R. § 3.156. 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 it must raise a reasonable possibility of substantiating the claim. Id. The credibility of new evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the April 2003 rating decision included the veteran's service medical records (SMRs). Since the April 2003 rating decision, the evidence of record includes, the veteran's VA treatment records from May 1999 to the present and a transcript from the veteran's September 2007 Travel Board hearing. A March 2005 VA treatment note reflects the veteran's past medical history as including a dislocation of the left shoulder while in service, and current left shoulder osteoarthritis and pain upon motion. In an April 2005 treatment note, the veteran reported first experiencing the dislocation of his left shoulder after a motor vehicle accident in 1978. He advised that his shoulder dislocates two to three times per year and causes shooting pain down the hand and numbness in his hand. Following dislocation, he experiences pain for two to three days. The VA treatment records reflect that the veteran sought treatment for recurrent left shoulder dislocations. He advised that he had a 30-year history of chronic left shoulder pain, but it had worsened in the past few months. In May 2005, the veteran underwent a MRI of the left shoulder. He was assessed as having osteoarthritis of the acromioclavicular joint with inferior osteophytes and rotator cuff impingement. The following month, the veteran was noted to have bilateral shoulder instability, left greater than right, with shoulder impingement syndrome. A December 2005 VA treatment note reflects the medical history, as related by the veteran, as including a motor vehicle accident during which his left shoulder was dislocated. In February 2006, the veteran underwent surgery for a left shoulder anterior labral tear and RTC tear. He was noted to have loose body, chondromalacia of the humeral head and the presence of a Hill-Sachs lesion. At his hearing in September 2007, the veteran confirmed his statements made to VA medical personnel about his left shoulder dislocation. He also advised that he did not seek formal treatment for many years due to many factors, including homelessness. The Board finds that the VA treatment records constitute new and material evidence. This evidence is new as it was not before agency decision makers when deciding the original claim, and it is material because it speaks to an unestablished fact necessary to substantiate the claim- specifically, that the veteran had a current left shoulder disability. The credibility of this new and material evidence is presumed for purposes of reopening the claim. Therefore, the veteran's previously denied claim of service connection for a left shoulder disability, is reopened. ORDER New and material evidence having been received, the veteran's claim of service connection for a left shoulder disability is reopened. REMAND In light of the VCAA and the recent VA medical treatment records, further evidentiary development is necessary. The veteran's July 1976 enlistment examination is devoid of any reference to a preexisting left shoulder disability. A February 1979 treatment record reflects the veteran's treatment for pain in the left shoulder and forearm. It was noted that the night before treatment, the veteran was involved in a motor vehicle accident. At the time, the veteran denied any prior trauma to the shoulder. Upon physical examination, the medical personnel indicated that the veteran had tenderness of the distal tip of the clavicle upon hyperextension of the left arm. The veteran was noted to have a contusion on the mid to upper left arm, but there were no noted bony abnormalities. He was noted to have full strength of his limbs with a soft tissue injury to the left shoulder and upper arm. Upon separation examination in September 1979, the veteran was noted to have been involved in a motor vehicle accident. The veteran's contusion of the left shoulder was also noted. Further noted, was the veteran's complaint that his left shoulder still annoyed him and occasionally caused him discomfort. The veteran reported his in-service medical history as including a dislocation of the shoulder in 1978, which occasionally came out and returned naturally back into its place. Based upon the evidence of record, the Board finds insufficient medical evidence upon which to render a decision on the veteran's claim of service connection for a left shoulder disability. The veteran had a left shoulder injury in service and he is currently diagnosed as having a left shoulder disability. There is no competent medical opinion of record discussing the likelihood that the veteran's current disability is related to service. Thus, the claim must be remanded for a VA examination to be scheduled and an opinion to be rendered as to the likelihood that the veteran's currently diagnosed left shoulder disability is attributable to his active service. This examination is required pursuant to 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, post-service, medical treatment records regarding the veteran's left shoulder disability. The veteran should be requested to sign the necessary authorization for release of any private medical records to VA. All attempts to procure records should be documented in the file. If VA cannot obtain records, a notation to that effect should be included in the claims file. In addition, the veteran and his representative should be informed of any such problem. 2. Schedule the veteran for a VA examination with an appropriate specialist to determine the nature and etiology of the veteran's left shoulder disability. The veteran's claims folder should be made available to the examiner. The examiner is to perform all necessary clinical testing and render all appropriate diagnoses. The examiner should then render an opinion as to whether it is at least as likely as not that the veteran's current left shoulder disability was incurred during or as a result of service. 3. When the development requested has been completed, the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional evidentiary development and the Board, at this time, does not intimate any opinion as to the merits of the case, either favorable or unfavorable. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs