Citation Nr: 1032972 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 05-25 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1975 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Newington, Connecticut. The Veteran testified at a formal hearing at the RO in July 2005. A transcript of which is of record. This claim was remanded by the Board in November 2007 for compliance with statutory notice requirements. The RO has complied with the directives of the remand. In February 2010, the Veteran requested additional time to present evidence in support of his claim. He was afforded a period of up to August 11, 2010, but he has not submitted any further evidence. The issue of service connection for a left shoulder disorder 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. Service connection for a left shoulder disorder was denied by rating decision of April 1976. 2. Evidence has been received since the April 1976 decision that raises a reasonable possibility of substantiating the claim of service connection for a left shoulder injury. CONCLUSIONS OF LAW 1. The April 1976 rating decision which denied service connection for a left shoulder disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104(a) (2009). 2. Evidence submitted since the April 1976 rating decision denying service connection for a left shoulder disorder is new and material. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's left shoulder disability claim and remands it for further development. As such, no discussion of VA's duty to notify or assist is necessary. The Veteran has filed a petition to reopen a claim for service connection for a left shoulder disorder. As the Veteran has submitted new and material evidence, the petition to reopen is granted. Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. The law provides that new and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Under 38 C.F.R. § 3.156(a), "new" evidence is that which was not previously of record. However, to be material, the evidence must raise a reasonable possibility of substantiating the claim, which, 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(a) (2009). The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). The RO provided the Veteran with a VA examination, which amounted to a de facto reopening of the case; however, the Board is not bound by the RO's actions. The Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Whether new and material evidence is submitted is also a jurisdictional test - if such evidence is not submitted, then the claim cannot be reopened. Barnett v. Brown, 83 F.3d 1380, 1383- 84 (Fed. Cir. 1996). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the claim for service connection for a shoulder disorder. The evidence in April 1976 consisted of service records that showed that the Veteran had a history of left shoulder dislocation prior to service. During his two weeks of service, he complained of severe pain in his left shoulder. It was determined that this disorder pre-existed service and that the Veteran did not meet the minimum requirements for enlistment. As a result the Veteran was discharged. Based on the above evidence, the Veteran's claim was denied in the April 1976 rating decision. The Veteran filed a petition to reopen a claim for his left shoulder in September 2004. In support of his petition, the Veteran submitted a medical record showing surgery to his shoulder in October 1975. The Veteran also submitted a statement in which he alleged that he has had limited movement of his shoulder since his 1975 surgery. The Veteran also submitted a letter from a VA treating physician who acknowledged the Veteran's current shoulder disorder. The RO scheduled the Veteran for a VA examination in February 2006. However, although the examiner opined that there was no evidence that the Veteran's left shoulder disorder was related to his military service, the examiner had not reviewed the Veteran's claims file, and it is unclear if he was aware of the Veteran's shoulder surgery during service. The Veteran's claim was denied on the basis of the RO's determination that the evidence did not show that the Veteran's shoulder disorder was etiologically related to service. The evidence submitted in support of reopening the claim includes records of shoulder surgery shortly after service and more recent medical records that show a diagnosis of a shoulder disorder. This evidence is new, as it was not of record at the time of the April 1976 decision. The evidence is also material as it raises a reasonable possibility of substantiating the Veteran's claim for service connection for a left shoulder disorder. The Board finds that new and material evidence has been received and the petition to reopen a claim for entitlement to service connection a left shoulder disorder is granted and the claim is reopened. ORDER As new and material evidence sufficient to reopen the claim of service connection for a shoulder disorder has been submitted, the appeal is granted to this extent. REMAND The basis for the denial of service connection for the shoulder disorder in April 1976 was lack of evidence of an etiology between the Veteran's disorder and service. The Veteran has since submitted new and material evidence that he had surgery on his shoulder in October 1975. In light of the evidence of the October 1975 surgery and medical evidence establishing a current diagnoses of a shoulder disorder, combined with the Veteran's claims of chronicity and continuity of symptomatology, the Board finds that the record suggests the possibility that the Veteran's current disorder is related to his active duty service. The Board finds that a new VA examination is necessary to determine whether the Veteran's current shoulder disorder is etiologically related to his service. McClendon v. Nicholson, 20 Vet. App. 79 (2006). In order to properly determine if a grant of service connection is appropriate for the Veteran's shoulder disorder, the examiner must clarify his findings upon review of the Veteran's claims file, including the October 1975 surgical records, and all pertinent medical records. The law requires that VA is specifically required to assess a disability in relation to its history when making disability determinations. Moore v. Shinseki, 555 F.3d 1369 (2009); see also Shipwash v. Brown, 8 Vet. App. 218 (1995); see 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.). Accordingly, the case is REMANDED for the following action: 1. The Veteran must be contacted and asked to provide the names and addresses, as well as the dates of treatment, of all health care providers who have treated him for a left shoulder disorder, evidence of which is not currently of record. After securing any appropriate consent from the Veteran, the AMC/RO must obtain any such treatment records that have not previously been associated with the Veteran's VA claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform the Veteran of this and request him to provide copies of the outstanding medical records. All attempts to secure this evidence must be documented in the claims files by the AMC/RO. 2. The AMC/RO shall return the claims file to the examiner who conducted the February 2006 VA examination. If the examiner is not available, arrange for the Veteran to undergo a new VA examination. The following considerations will govern the examinations: a. The claims file and a copy of this remand must be made available to the examiner who must acknowledge such receipt and review in any report generated as a result of this remand. b. Any indicated diagnostic tests and studies, including x-rays, must be accomplished. c. The examiner shall: i. Indicate whether the Veteran has current diagnosis of a shoulder disorder; and ii. If a shoulder disorder is diagnosed, the examiner must opine if the current disorder was caused or aggravated by any incident during the Veteran's period of service. d. The opinions must be based on a review of the entire claims file and contain a rationale. If the opinion cannot be provided without resorting to mere speculation, the examiner should so state, and identify any information that would be necessary to respond to the inquiry. 3. The AMC/RO will then readjudicate the claim for service connection for a left shoulder disorder. If any such action does not resolve the claims, the AMC/RO shall issue the Veteran and his representative a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 Supp. 2009). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs