Citation Nr: 1124157 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-14 137 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for right shoulder disability has been received. 2. Entitlement to service connection for right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to May 1984. A claim for service connection for right shoulder disability was previously considered and denied, most recently in an October 1996 decision of the Board of Veterans Appeals (Board). This appeal to the Board arose from an October 2009 rating decision in which the RO reopened the Veteran's claim for service connection for a right shoulder disability and then denied the claim for service connection on the merits. In November 2009, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in February 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2010. In December 2010, the Board remanded the claim on appeal to the RO to arrange for a requested Board hearing at the RO (Travel Board hearing). In January 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. During the hearing, the Veteran requested, and the Veterans Law Judge granted, a 30-day abeyance period to submit additional evidence. To date, no additional evidence has been received. Although, as indicated above, the RO reopened the Veteran's claim and addressed it on the merits, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received-and given the Board's favorable disposition on the request to reopen-the Board has characterized this appeal as encompassing both matters set forth on the title page. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. In an October 1996 decision, the Board denied the Veteran's petition to reopen the claim for service connection for a right shoulder disability. 3. Evidence associated with the claims file since the October 1996 denial is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a right shoulder disability. 4. The Veteran was seen during service for complaints of right shoulder pain; however, no chronic right shoulder disability was shown in service, or within the first post-service year; the first diagnosis of a shoulder problem, bursitis, was rendered more than two years after discharge in October 1986. 5. Pertinent to the current claim, the Veteran has diagnoses of partial tear of the right rotator cuff and right shoulder impingement syndrome, and his assertions of continuity of shoulder symptoms since service are outweighed competent, probative evidence, to include the only medical opinion on the question of whether there exists a medical nexus between such current right shoulder disability and service that is adverse to the claim. CONCLUSIONS OF LAW 1. The Board's October 1996 denial of the Veteran's petition to reopen the claim for service connection for right shoulder disability is final. 38 8 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2010). 2. As new and material evidence has been received, the criteria for reopening the claim for service connection for right shoulder disability are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010) (as in effect for claims filed on and after August 29, 2001). 3. The criteria for service connection for right shoulder disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Given the Board's favorable disposition of the claim to reopen, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. Pertinent to the matter of service connection, on the merits, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a March 2009 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the petition to reopen his claim for service connection for a right shoulder disability, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the need for the Veteran to advise VA of and to submit any further evidence that is relevant to the claim. The March 2009 letter also provided general information concerning VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Hence, the March 2009 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, private treatment records, VA treatment records, and the report of a September 2009 VA examination. Also of record and considered in connection with the appeal is a transcript of the Veteran's January 2011 Board hearing testimony, as well as various written statements provided by the Veteran and by his representative, on his behalf. No further RO action on either claim is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim for service connection, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Request to Reopen Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). The Veteran's claim for service connection for a right shoulder disability was originally denied in a March 1986 rating decision. The record reflects that the Veteran's claim for service connection for a right shoulder disability was considered and denied on several occasions since the original March 1986 rating decision. Most recently, in October 1996 the Board declined to reopen a claim for service connection for a right shoulder disability, on the basis that new and material evidence had not been received. The pertinent evidence then of record included the Veteran's service treatment records, which document the Veteran's complaints of right shoulder pain following a September 1981 motor vehicle accident, as well as note a contusion and sprain of the right shoulder. Post service records, including VA outpatient treatment records and a November 1985 VA examination, reflect the Veteran's complaints of right shoulder pain, but there was no evidence of a current right shoulder disability. In the March 1986, the RO denied the claim for service connection on the basis that there were no residuals of a right shoulder disability following service. In the October 1996 decision, the Board found that as the newly submitted evidence failed to show a chronic disability of the right shoulder, reopening the claim was not warranted. Unless the Chairman orders reconsideration, or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The Veteran requested that VA reopen the previously-denied claim for service connection in March 2009. Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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 new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim is the Board's October 1996 decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Pertinent evidence added to the claims file since October 1996 Board decision additional VA outpatient treatment records, the report of a December 2008 MRI of the right shoulder, the report of a September 2009 VA examination, the transcript of the Veteran's January 2011 Board hearing, and additional written statements by the Veteran and his representative. The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for a right shoulder disability. At the time of the October 1996 Board decision, there was no post-service medical evidence of a chronic right shoulder disability. The December 2008 MRI report reflects an impression of a partial rotator cuff tendon tear and degenerative changes of the right shoulder acromioclavicular joint. The September 2009 VA examination report also notes a diagnosis of right shoulder partial rotator cuff tear and impingement syndrome. In addition, the January 2011 Board hearing, the Veteran testified that he had experienced chronic right shoulder pain since the in-service motor vehicle accident, and he attributed his current symptoms to the initial in-service injury. The Board finds that the above-described evidence is "new" in that it was not before agency decision makers at the time of the October 1996 final denial of the petition to reopen the claim for service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that confirms current diagnosis of a right shoulder disability, and when considered along with the Veteran's assertions as to continuity of shoulder symptoms since service, provides a potential link between this current disability and active duty service. Hence, this evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a right shoulder disability, and raises a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a right shoulder disability are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. III. Service Connection, on the Merits The Veteran contends that he is entitled to service connection for a right shoulder disability, as he believes that his current right shoulder problems stem from an initial in-service injury incurred as the result of a motor vehicle accident. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a right shoulder disability is not warranted. As alluded to above, the Veteran's service treatment records reflect that in September 1981, he complained of pain over the scapula after holding another person during a motor vehicle accident. An x-ray of the right shoulder was negative, and an impression of a contusion and sprain of the right shoulder was noted. The Veteran continued to complain of right shoulder pain in October 1981. However, no right shoulder abnormalities were noted on the April 1984 discharge examination report. Following service, on VA examination in November 1985, the Veteran complained of continued right shoulder discomfort. However, an examination revealed no deformity or range of motion loss. Right shoulder injury was indicated. VA outpatient treatment records document the Veteran's right shoulder symptoms and complaints. An assessment of bursitis of the right shoulder was noted in 1986. In October 1986, though the Veteran complaints of right shoulder pain continued, an x-ray of the right shoulder was within normal limits. No underlying pathology was found, aside from some decreased sensation which did not follow any dermatome pattern. During a Board hearing in June 1987, the Veteran indicated that he had right shoulder complaints at the time of his service separation examination, and that he believed that his right shoulder disability was due to service. A December 1990 VA outpatient treatment record notes negative right shoulder x-rays. In April 1991, there was a suggestion of mild bursitis, but the Veteran retained functional range of motion and there was no evidence of radiculopathy, instability, or active inflammation. A VA outpatient treatment record from March 2002 notes tenderness over the right deltoid area, though muscle tone was adequate and there were no deformities. In September 2008, the Veteran continued to complain of right shoulder pain, noting an onset three months prior. A December 2008 MRI of the right shoulder revealed partial rotator cuff tendon tear with associated mild shoulder impingement syndrome and effusion, as well as degenerative changes of the acromioclavicular joint. VA outpatient records following the MRI show complaints of pain in extension and rotation of the right shoulder secondary to the partial rotator cuff tear. On VA examination in September 2009, the Veteran reported that he initially injured his right shoulder during the in-service motor vehicle accident and experienced constant right shoulder pain with changes in intensity over the years. He denied any other injury to the shoulder, but did acknowledge that he had a work-related injury to the back as the result of a fall from a chair. Current symptoms included pain and limited range of motion. After a physical examination, diagnoses of right shoulder partial rotator cuff tear and right shoulder impingement syndrome were noted. Based upon a review of the Veteran's claims file and medical history, and examination of the right shoulder, the examiner opined that it is less likely than not that the Veteran's current right shoulder disability is related to service-specifically the in-service motor vehicle accident. The examiner noted that it was well-documented that the Veteran received treatment for his right shoulder disability during and after service. However, she also noted that medical literature indicates that partial tendon tears are the result of tendinosis, which is a chronic process of tendon degeneration and less likely related to trauma. She indicated that in cases of complete tear, the etiology may be related to severe trauma or tendinosis; however, in this case the Veteran did not have a complete tear. She noted that the Veteran had an extensive period of time without treatment between 1990 and 2002, and complaints were sporadic during the years of treatment, but observed that it was not until 2008, when a diagnosis of partial rotator cuff tear was assigned, that severe symptoms were indicated. She opined that the time from was too long to related his current complaints to the in-service injury. During the January 2011 Board hearing, the Veteran testified that he had experienced constant right shoulder pain since the in-service motor vehicle accident and right shoulder injury. He acknowledged that he stopped treatment for his right shoulder in 1990, but still experienced right shoulder pain and self-treated the condition with over-the-counter medication. He expressed his believe that his current right shoulder disability, to include a partial rotator cuff tear, is related to the initial in-service injury, as he had no other post-service right shoulder injury. The above-cited evidence clearly establishes that the Veteran has a right shoulder disability, namely a partial rotator cuff tear. It also establishes that the Veteran experienced a right shoulder problem in service around the time of the September 1981 motor vehicle accident. However, competent, probative evidence does not show that the right shoulder problem occurring around September 1981 resulted in the current right shoulder disability. Notably, although right shoulder contusion and strain were noted in September 1981, and on April 1984 discharge examination, no right shoulder disability was then found or otherwise diagnosed at any point during service. Records from the years immediately following the Veteran's discharge from service, to include the report of a November 1985 VA examination, x-rays and examination findings yielded negative results and no right shoulder pathology was found. While the bursitis was assessed in October 1986, VA treatment records reflect no objective basis for such a diagnosis. In fact, no diagnosis related to the Veteran's right shoulder was rendered until after the December 2008 MRI. Significantly, moreover, the September 2009 VA examiner's opinion is the only competent opinion to address the question of whether there exists a medical nexus between current left shoulder disability and service, and that opinion is not supportive of the claim. Instead, the examiner found that the Veteran's current right shoulder partial rotator cuff tear was less likely than not related to service . The Board notes points out that, in formulating her opinion, the September 2009 VA examiner reviewed the claims file, including the service treatment records and the September 1981 accident report, indicated that she reviewed pertinent medical literature, and provided adequate rationale in support of the conclusions reached. Under these circumstances, the Board accepts this opinion as probative of the medical nexus question. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding, inter alia, that it is the responsibility of the BVA to assess the credibility and weight to be given the evidence). Significantly, the Veteran has neither presented nor identified any contrary medical opinion-i.e, one that, in fact, supports the claim. In addition to the medical evidence, the Board has considered the Veteran's own assertions, as well as those advanced by his representative, on his behalf. However, none of this evidence provides a basis for allowance of the claim. The Board notes that the Veteran is competent to offer evidence as to facts within his personal knowledge, such as the occurrence of an in- service injury, and his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As indicated, the Veteran has asserted continuity of right shoulder symptoms since service. However, such assertions must be considered in light of the medical and other evidence of record. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Here, the Board acknowledges that there are a few notations as to shoulder complaints within the first couple of years post service; however, examination findings were normal, even at the time the Veteran was assessed with bursitis in October 1986. Significantly, there are no records to support the Veteran's assertions of continuity of symptoms up to the current diagnoses in 2008. In fact, the Veteran's assertions in this regard appear to be contradicted by the notation, in a September 2008 treatment record, that the onset of the Veteran's pain was three months prior. The Board accepts as more credible information provided by a veteran in seeking medical treatment than assertions advanced in connection with a claim for benefits. The Board also points out that, in rendering the probative opinion on the question of medical nexus, the September 2009 examiner clearly considered all pertinent evidence of record-to include the Veteran's assertions of continuity of shoulder symptoms since service-and still rendered a medical opinion that is adverse to the claim. As such, the Board finds that the Veteran's assertions as to continuity of symptoms are outweighed competent, probative evidence, to include the only medical opinion on the question of whether there exists a medical nexus between such current right shoulder disability and service. Finally, to whatever extent the Veteran and/or his representative attempt to directly establish a nexus between current right shoulder disability and service, such attempt must fail. As noted, the Board finds unpersuasive the Veteran's assertions of continuity of right shoulder symptoms since service. Moreover, questions of medical diagnosis and etiology of a medical disability are matters within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As laypersons without the appropriate medical training or expertise, neither the Veteran nor his representative is competent to render a probative (i.e., persuasive) opinion on such a medical matter. 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) (a layman is generally not capable of opining on matters requiring medical knowledge). Hence, the lay assertions as to medical nexus have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a right shoulder disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence has been received, to this limited extent, the appeal is granted. Service connection for a right shoulder disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs