Citation Nr: 0814900 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-12 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right shoulder disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from August to October 1988, from April 1991 to August 2002, and additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which essentially reopened the veteran's previously denied claims of service connection for right and left shoulder disabilities and denied these claims on the merits. This decision was issued to the veteran and his service representative in April 2004. The veteran disagreed with this decision in March 2005. He perfected a timely appeal in April 2006. The Board observes that, in an August 2002 rating decision, the RO denied, in pertinent part, the veteran's claims of service connection for right and left shoulder disabilities. The veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). As noted above, in the currently appealed rating decision, the RO essentially reopened and denied these claims on the merits. The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, although the RO has reviewed the veteran's service connection claims for right and left shoulder disabilities on a de novo basis, these issues are as stated on the title page. Regardless of the RO's reopening of the claims for service connection for right and left shoulder disabilities, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened, regardless of the RO's finding. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In an August 2002 rating decision, the RO denied the veteran's claims of service connection for right and left shoulder disabilities. 3. New and material evidence has been received since the August 2002 rating decision in support of the veteran's claims of service connection for right and left shoulder disabilities. 4. There is no medical evidence that the veteran currently experiences any shoulder disability which is attributable to active service. CONCLUSIONS OF LAW 1. The August 2002 rating decision, which denied the veteran's claims of service connection for right and left shoulder disabilities, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 3.104 (2007). 2. Evidence received since the August 2002 RO decision in support of the claims of service connection for right and left shoulder disabilities, is new and material; accordingly, these claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. A right shoulder disability was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). 4. A left shoulder disability was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a September 2003 letter, VA notified the veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his disabilities during service, and noted other types of evidence the veteran could submit in support of his claims. In addition, the veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The September 2003 letter also defined new and material evidence, advised the veteran of the reasons for the prior denial of the claims of service connection for right and left shoulder disabilities, and noted the evidence needed to substantiate the underlying claims of service connection. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). As will be explained below in greater detail, the evidence submitted since the last final denial merits reopening of the claims for service connection for right and left shoulder disabilities. Because the veteran does not currently experience any disability due to right or left shoulder disabilities which is attributable to active service, however, the veteran's reopened service connection claims for right and left shoulder disabilities must be denied on the merits. Thus, any failure to notify and/or develop this claims under the VCAA cannot be considered prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Additional notice of the five elements of a service- connection claim was provided in March 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The September 2003 VCAA letter was issued prior to the March 2004 rating decision; thus, this notice was timely with respect to these claims. As the veteran's claims are being reopened and denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. VA has obtained service medical records, assisted the veteran in obtaining evidence, and afforded the veteran the opportunity to give testimony before the RO and the Board, although he declined to do so. VA need not conduct an examination with respect to the claims of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In any event, VA has provided the veteran with an examination to determine the etiology of his claimed shoulder disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; the veteran has not contended otherwise. Thus, VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claims at this time. In an August 2002 rating decision, the RO denied the veteran's claims of service connection for right and left shoulder disabilities. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2007). Because the veteran did not an initiate an appeal, the August 2002 rating decision became final. The claims of entitlement to service connection for right and left shoulder disabilities may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran filed this application to reopen his previously denied service connection claims for right and left shoulder disabilities on a VA Form 21-4138 that was date-stamped as received at the RO on August 22, 2003. New and material evidence is defined by regulation, see 38 C.F.R. § 3.156, which VA amended in 2001. See 66 Fed. Reg. 45620- 45632 (August 29, 2001). The amended version of 38 C.F.R. § 3.156(a), however, is only applicable to claims filed on or after August 29, 2001. Because the veteran filed this application to reopen his claim of service connection for multiple joint pains, to include as due to an undiagnosed illness, on August 22, 2003, the amended version of 38 C.F.R. § 3.156(a) is applicable to this case. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the veteran's application to reopen claims of service connection for right and left shoulder disabilities, the evidence before VA at the time of the prior final rating decision in August 2002 consisted of the veteran's service medical records, service personnel records, and VA treatment records. In the narrative for this rating decision, the RO determined that, although the veteran's service medical records showed in-service treatment for bilateral shoulder pain, his shoulder x-rays were normal. The veteran also had failed to report for VA pre-discharge examination. As there was no evidence of chronic disability in either shoulder, both claims were denied. The newly submitted evidence consists of a July 2006 VA examination report and the veteran's lay statements. On VA examination in July 2006, the veteran complained of difficulty lifting his arms due to bilateral shoulder pain. The VA examiner reviewed the veteran's claims file, including his service medical records and post-service VA treatment records. Because the veteran reported that there was no difference between either shoulder, the VA examiner stated that he would treat the shoulders as bilateral. Physical examination of the left shoulder showed very firm and large upper body musculature. "The examination is very difficult to do because the veteran will not let me put him through range of motion exercises." Although the veteran reported that abduction beyond 90 degrees hurt him, the VA examiner noted that he contracted his muscles with force and push back against the examiner when he attempted to abduct the veteran's shoulder beyond 90 degrees. The VA examiner also stated that, if the veteran was experiencing the shoulder pain which he reported that he was experiencing, then he would have weakness in the shoulder and muscle flaccidity and not increased strength. "He was using his strength to prevent me from putting him through maximum range of motion. This would not be what you would find in someone with shoulder pain. He would have shoulder weakness and not shoulder strength." Physical examination of the right shoulder was exactly identical to the left shoulder. X-rays of the bilateral shoulder showed pristine acromioclavicular joints with no evidence of any arthritic process or calcification in any area of the shoulder joints. The VA examiner found that the veteran had no history of shoulder injuries either before or after active service. Although the veteran was diagnosed as having arthritis during active service, the VA examiner concluded that this "off the wall diagnosis" was made with "absolutely no evidence on physical examination or x-ray that he actually had arthritis in the shoulders." The VA examiner also found that there was absolutely no x-ray evidence of arthritis in the veteran's bilateral shoulder joints. "The veteran used moderate strength to prevent me from putting him through range of motion exercises which is not what you would see with somebody with pain in the shoulders. You would see profound weakness due to pain and not strength." The VA examiner stated that the veteran's complaint of pain radiating from the shoulders down in to the arms and hands "is not pain that would find in any type of shoulder abnormality. You do not get radicular pain or pain radiation down in to the hand from a shoulder condition." The VA examiner opined that the veteran did not have a problem with his bilateral shoulders and any bilateral shoulder complaints were not caused by or related to active service. The assessment was bilateral normal shoulders. With respect to the veteran's application to reopen claims of service connection for right and left shoulder disabilities, the Board also observes that the evidence that was of record in August 2002 did not show any post-service complaints of or treatment for shoulder disabilities which could be related to active service. The veteran has now submitted medical evidence showing such treatment. Such information must be presumed credible for the purposes of reopening the veteran's service connection claims for right and left shoulder disabilities. See Justus, 3 Vet. App. at 513. Because the newly submitted evidence raises a reasonable possibility that the veteran's right and left shoulder disabilities may be related to active service, the Board finds that this evidence is new and material. This evidence was not previously submitted to agency decision makers, relates to an unestablished fact necessary to substantiate the claims of service connection for right and left shoulder disabilities, and is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the claims for service connection for right and left shoulder disabilities are reopened. Having determined that new and material evidence has been received to reopen the veteran's claims of service connection for right and left shoulder disabilities, the Board must adjudicate these claims on the merits. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A review of the veteran's service medical records indicates that, at his enlistment physical examination in August 1990, the veteran denied any relevant medical history. Clinical evaluation of his upper extremities was completely normal. X-rays in April 1998 showed normal bilateral shoulders. In June 1998, the veteran complained of shoulder pain that had lasted for the past 6 years. The assessment was pain caused by arthritis. As noted above, the veteran failed to report for his pre-discharge VA examination in August 2002. As also noted above, following claims file review and a thorough physical examination of the veteran, the VA examiner determined in July 2006 that the veteran's bilateral shoulders were completely normal and that the veteran's bilateral shoulder complaints were not related to active service. The Board finds that the preponderance of the evidence is against the veteran's claims of service connection for right and left shoulder disabilities. The veteran was treated for a single complaint of shoulder pain in June 1998 during active service. Although the in-service examiner diagnosed shoulder pain due to arthritis in June 1998, as the VA examiner noted in July 2006, this "off the wall diagnosis" of shoulder pain due to arthritis was made with "absolutely no evidence on physical examination or x-ray that he actually had arthritis in the shoulders." The veteran's most recent VA examination in July 2006 showed that he did not experience any disability in either of his shoulders which is attributable to active service. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put, service connection is not warranted in the absence of proof of a present disability. Additional evidence in support of the veteran's service connection claims for right and left shoulder disabilities is his own lay assertions. As a lay person, however, the veteran is not competent to opine on medical matters such as the etiology of medical disorders. The record does not show, nor does the veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion on this matter. Accordingly, the veteran's lay statements are entitled to no probative value. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In summary, absent evidence of chronic disability due to right or left shoulder problems during active service, and without a medical nexus between right or left shoulder disability and active service, the Board finds that service connection for a right shoulder disability and for a left shoulder disability is not warranted. As the preponderance of the evidence is against the veteran's claims, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER As new and material evidence has been received, the claim of service connection for a right shoulder disability is reopened. To that extent only, the appeal is allowed. Entitlement to service connection for a right shoulder disability is denied. As new and material evidence has been received, the claim of service connection for a left shoulder disability is reopened. To that extent only, the appeal is allowed. Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs