Citation Nr: 1010182 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 06-05 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been presented to reopen a claim of service connection for a left shoulder disability, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty with the Army from May 1971 to July 1973 and with the Army National Guard from January 1983 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied the above claim. In July 2007, the Veteran was a Travel Board hearing before the undersigned. In October 2007, the Board remanded this case. FINDINGS OF FACT 1. In February 1988, the Board denied service connection for dislocation of the left shoulder. 2. Evidence submitted since the Board's February 1988 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 1988 Board decision, in which the Board denied service connection for dislocation of the left shoulder is final. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2009). 2. New and material evidence has been received since the Board's February 1988 decision; thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to the issue of whether new and material evidence has been received to reopen the claim of service connection for a left shoulder disability, the Veteran's claim is being granted to the extent that it is reopened. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, arthritis will be presumed to have been incurred in service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 may be granted for disability resulting from disease or injury incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C.A. §§ 101(24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Active military service includes active duty, any period of ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). Generally, an individual who has only Reserve or National Guard service (ADT or IDT with no active duty) is not a veteran as legally defined. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. Thus, service connection on a presumptive basis is not available where the only service performed is ADT or IDT. See Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran had a period of active duty from May 1971 to July 1973. There was no incident of left shoulder disease or injury. The Veteran thereafter was in the National Guard from January 1983 to July 1986. On April 13, 1985, the Veteran was treated for a dislocated shoulder which occurred when he was trying to climb up and out of a truck. The Veteran stated that this was the 11th dislocation of his left shoulder. X-rays revealed an anterior dislocation of the left shoulder with a large Hill- Sachs lesion. The dislocation was reduced and he was prescribed pain medication. He was also provided a shoulder immobilizer. A June 5, 1985 treatment record indicates that the Veteran was scheduled for surgery on his left shoulder, but he cancelled the surgery and opted to schedule a Medical Evaluation Board (MEB). The record also reflects an undated Line of Duty Investigation which referred to prior medical records which reflected that the Veteran had 11 prior dislocations. It was also noted that on his SF 93 entrance examination dated January 26, 1983, he reported that he had a trick shoulder. The physician summary stated that in December 1982, the Veteran had a trick shoulder due to a basketball injury. However, he had experienced no problem or pain since that time. This report indicated that the Veteran should be reevaluated. One suggestion was a reevaluation at Fort Polk. The underlying records are not contained in the claims file. In September 1985, the evaluation was undertaken at Fort Polk. It was noted at that time, that the Veteran initially dislocated his left shoulder at Fort Polk while on active duty with the National Guard in the summer on 1983 while the Veteran was jumping off a truck. During the next year, as a civilian, the left shoulder dislocated 3-4 times requiring emergency reduction. The Veteran returned to active duty, but then again dislocated his left shoulder in April 1985. He reported two subsequent left shoulder dislocations as a civilian after the April 1985 dislocation. X-rays revealed an anterior dislocation of the left shoulder with a large Hill-Sachs lesion on the posterior-superior humeral head. Westpoint views revealed erosion of the anterior-inferior border to the glenoid as well as the posterior-superior Hill- Sachs lesion. The examiner indicated that a permanent limitation would remain and that the Veteran did not meet retention standards as prescribed by AR 40-501, Chapter 3, para 1-12c. He was recommended to appear before a physical evaluation board (PEB). The initial PEB was held in February 1986. The board determined that the Veteran had recurrent dislocation/subluxation of the glenohumeral joint, existing prior to service, not permanently aggravated by service. The board found that there was insufficient available evidence to substantiate that this impairment was incurred during the 1983 annual training period or that it recurred during the 1984 training period. The dislocation which occurred in 1985 was considered to be a normal manifestation of a preexisting condition which was not service-incurred and that the impairment was not permanently aggravated by service. Therefore, the PEB recommended that the Veteran be separated from service without entitlement to disability benefits therefrom. However, the next month, in March 1986, another PEB reconsidered the Veteran's left shoulder injury. The diagnoses of recurrent dislocation/subluxation of the left glenohumeral joint. It was noted that additional medical evidence substantiated that the Veteran's left shoulder dislocation originated in June 1983 while the Veteran was on ADT. The PEB stated that radiographic reports dated in June 1983 (not contained in the claims file) supported this conclusion. The PEB found that the current impairment was best described and rated as shown on the diagnosis. Therefore, the prior PEB was superseded. The Veteran remained unfit for duty. It was noted that he was entitled to severance pay, if otherwise qualified. Thereafter, VA records were received. On January 27, 1983, the Veteran was discharged from the orthopedic clinic per his request. On the reverse side, presumably from a prior appointment, it was noted the Veteran had dislocations of the shoulder over the past year (8 times). It was noted that the shoulder was painful and needed an operation for repair. In December 1986, the Veteran was afforded a VA examination. At that time, it was noted that the Veteran suffered a dislocated shoulder in April 1985, which he reported recurred in February 1986. On physical examination and x-rays, there were no abnormalities of the left shoulder. The impression was by history only, not clinically apparent, and with minimal limitation of abduction noted, recurrent dislocation of left glenohumeral joint with none occurring in the past 10 months after description of 12 episodes last year. In May 1987, the Veteran stated that he felt that his shoulder was aggravated while he was a member of the National Guard. He stated that he explained his shoulder condition before he enlisted in the National Guard and they enlisted him anyway. In February 1988, the Board denied service connection for dislocation of the left shoulder. The February 1988 Board decision is final. 38 U.S.C.A. § 7104(b). The basis for the denial was that a dislocation of the left shoulder was not present during the Veteran's period of active service from May 1971 to July 1973, and dislocation of the left shoulder which preexisted all periods of ADT from January 1983 to July 1986, did not undergo a permanent increase in severity during ADT. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The legal standard of what constitutes "new and material" evidence was amended. This amendment is applicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001, and this claim was so filed. See 38 C.F.R. § 3.156(a). 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) (2009). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Since the prior final decisions, evidence has been added to the claims file. The additional evidence of record consists of statements of the Veteran, his wife, and his representative. The Veteran testified in July 2007 that he had no left shoulder dislocations prior to incident that occurred during active duty for training in 1983. In addition, medical records have been received. Records provided by the Louisiana Army National Guard Separated Records, via the Veteran's Congressman, include two June 1983 x-ray reports. The Veteran reported that he fell from a truck and initial examination showed complete anterior dislocation of the left shoulder. An x-ray report dated June 13, 1983 showed post reduction of the previously identified dislocation of the left shoulder. Subsequent records reflect that in November 1988, less than two years after he separated from service, the Veteran required reconstructive surgery of the left shoulder. Subsequent medical records revealed arthritis in that shoulder. A notation from the Alexandria VA treatment facility notes that the Veteran was treated on December 25, 1982, but that actual records from this treatment could not be located. In addition, the representative pointed to the missing evidence in this case, particularly, the December 1982 report of a prior left shoulder basketball injury. It was emphasized that the PEB in March 1983 determined that the initial left shoulder dislocation occurred in service, in 1983. The representative essentially asserts that aggravation was not adequately considered. The additional evidence is new and material. The previously missing June 1983 inservice x-rays report showing a left shoulder dislocation is cumulative. The service treatment records considered by the Board at the time of the February 1988 decision discussed the June 1983 injury and the x-ray and the Board acknowledged this injury in its decision. However, the new post service medical evidence shows that the Veteran required left shoulder surgery in 1988 in close proximity to his service separation, possibly indicative of a higher level of impairment, as alleged by the Veteran. The Veteran has also testified that the initial injury to his shoulder occurred in June 1983 and in considering whether to reopen a claim, VA must assume the credibility of this evidence. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). New and material evidence has been received since the February 1988 Board decision, and the claim of service connection a left shoulder disability is reopened. ORDER The application to reopen the claim of service connection for a left shoulder disability is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The claim of service connection for a left shoulder disability has been reopened. However, prior remand directives remain incomplete. As such, further action is necessary in this case, in accordance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). Specifically, the Board previously requested that the complete dates of the Veteran's service, as well as the type of service during each period of enlistment, i.e., whether it was active duty, active duty for training, or inactive duty for training, should be separately noted. The RO has attempted to obtain this information from the Adjutant General and the Army National Guard Readiness Center. It appears that the letter sent to the Adjutant General was returned to VA with "Return to Sender" written on the envelope. There does not appear to be a reply from the Army National Guard Readiness Center. Thus, these efforts to verify service should again be undertaken. Further, because this case presents complex medical and unresolved factual questions and since the Board is precluded from reaching its own unsubstantiated medical conclusions, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds that a VA medical opinion should be obtained regarding the etiology and nature of the Veteran's left shoulder disability. Accordingly, this matter is REMANDED for the following actions: 1. Contact (a) the National Personnel Records Center, (b) the Adjutant General's Office of the Louisiana National Guard, (c) the Army National Guard Readiness Center, and (d) any other appropriate source and request copies of the Veteran's complete service treatment records concerning his service with the Louisiana Army National Guard from January 1983 to September 1986 (to include, but not limited to, all clinical records, a copy of the January 1983 entrance examination, all records related to a left shoulder injury in 1983, and all records related to any Physical Evaluation Board proceedings) and his complete service personnel records. All attempts made to locate these records should be documented for the file. Also, request verification of the complete dates of the Veteran's service, as well as the type of service during each period of enlistment, i.e., whether it was active duty, active duty for training, or inactive duty for training. All periods of active duty for training or inactive duty for training should be separately noted. 2. Thereafter, obtain a VA medical opinion from an orthopedist. The doctor should be asked to review the entire claims folder and provide an opinion as to the following questions: The Veteran served with the Army National Guard from January 1983 to September 1986. Please indicate whether the clinical onset of the Veteran's left shoulder disorder was prior to his military service. In providing this opinion, please acknowledge and discuss the Veteran's statement made in January 1983 that he had a trick shoulder due to a basketball injury in December 1982 (prior to his active service) and that he had experienced no problem or pain since that time. If your response is that the clinical onset was prior to military service, is there any factual evidence which supports a conclusion that during military service the Veteran's left shoulder condition underwent an identifiable permanent increase in severity which was beyond its natural progression? In providing this opinion, please discuss the significance of the in-service injuries in June 1983 and April 1985. If the left shoulder disorder did not preexist National Guard service beginning in January 1983, did it have its clinical onset during service or is it related to any in-service disease, event, or injury, including the injuries in June 1983 and April 1985. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. The AMC should then review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AMC should return the case to the examiner for completion of the inquiry. 4. Finally, the AMC should readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or 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 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 2002 & Supp. 2009). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs