Citation Nr: 1127952 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-40 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Carmody, Law Clerk INTRODUCTION The appellant is a Veteran who served on active duty from May 1967 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a claim of service connection for a left shoulder disability. Although the RO implicitly reopened the Veteran's claim of service connection for a left shoulder disability by deciding the issue on the merits in a November 2007 statement of the case (SOC), the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. In May 2011 written argument, the Veteran's representative stated that a July 2005 rating decision denied service connection for a left shoulder disorder (notice was mailed July 27, 2005), and that on July 17, 2006, the Veteran attempted to reopen this claim. The representative argued that the Agency of Original Jurisdiction (AOJ) erred when it determined that new and material evidence was required since the July 27, 2005 decision had not become final prior to the appellant's subsequent claim, and he further argued that any favorable decision would be effective from January 2005 (the date of his original claim for benefits). Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD). A NOD is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative decision. "While special wording is not required, the [NOD] must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review." 38 C.F.R. § 20.201 (emphasis added). On careful review of the Veteran's claims file, it is not shown that he ever submitted a statement in which he expressed dissatisfaction or disagreement with the July 2005 rating decision. Rather, the Board notes that in July 2006, the Veteran filed a new claim for service connection for a left shoulder disability. The claim stated, "we [the accredited representative] are submitting the attached material as a claim for benefits," and further stated, "[p]lease take action to consider the following: [c]laim for entitlement to service connection for residuals of injury to left shoulder area." This did not constitute a NOD, but rather, a new claim, and therefore did not initiate the appeal process for the July 2005 rating decision. As such, the November 2006 rating decision properly adjudicated the Veteran's claim as a claim to reopen. The matter of entitlement to service connection for a left shoulder disability based on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. FINDINGS OF FACT 1. An unappealed July 2005 rating decision denied service connection for a left shoulder disability essentially because there was no evidence that such disability was incurred in or caused by the Veteran's service. 2. Evidence received since the July 2005 rating decision raises questions about the nature and etiology of the Veteran's current left shoulder disability, relates to an unestablished fact necessary to substantiate the claim of service connection for a left shoulder disability, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a left shoulder disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. B. Legal Criteria, Factual Background, and Analysis A July 2005 rating decision denied the Veteran's claim of service connection for left shoulder arthritis because it was not shown that such disability was related to his service. The Veteran did not appeal this decision and it became final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). In the case of any Veteran who engaged in combat [VA] shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence if consistent with the circumstances of service. 38 U.S.C.A. § 1154(b). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disorder also may be service connected if the evidence of record shows that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Certain chronic diseases (to include arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Evidence of record in July 2005 consisted of the Veteran's DD 214, which shows that he was awarded a Purple Heart Medal, his service treatment records (STRs); his statements; and VA treatment records from December 2004 to January 2005. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnoses related to the left shoulder. They show that he sustained multiple fragment wounds to his back during a mortar attack in March 1968. On April 1969 separation examination, clinical evaluation of the upper extremities was normal. On April 1969 report of medical history, the Veteran noted that following his March 1968 injury, he has had back trouble. He denied having or having ever had a painful or "trick" shoulder or elbow. December 2004 to January 2005 VA treatment records show complaints of and treatment for left shoulder pain. In January 2005, it was noted that the Veteran had arthritis/joint pain in his left shoulder. He stated that he felt that this was related to an event in service wherein he was blown out of his tank, landed on his shoulder, and sustained a shrapnel injury to the back. A January 2005 X-ray report showed moderate to marked severe osteoarthritic changes in the left glenohumeral joint evidenced by the formation of large osteophytes on the inferior aspect of the humeral head. There was no fracture or dislocation. There were ballistic fragments projected over the central portion of the humeral head and over the lateral aspect of the scapula; the acromiclavicular joint was intact. Evidence received since the July 2005 rating decision includes: * A January 2008 letter from W.A., who stated that he was present in Vietnam when the Veteran's tank was blown up, and witnessed the Veteran being thrown off from the tank, landing on his arm, shoulder, and back. Thereafter, the Veteran was medically evacuated for treatment. * A November 2006 letter from Dr. R.L.S., the Veteran's private physician, stating that he had been treating the Veteran for orthopaedic complaints mainly due to a prior injury and severe arthritis in the left shoulder. He noted further the Veteran had several foreign bodies in his left shoulder, which were "obviously shrapnel," and that the Veteran would probably need a total shoulder arthroplasty in the future. * A copy of the January 2005 VA X-ray report of the left shoulder. * VA treatment records from May 2007 to June 2007, which note the Veteran's medical history of osteoarthritis. They are silent for any specific complaints of or treatment for the left shoulder. Analysis The Board finds that the evidence received since the July 2005 rating decision is new and material because it was not before agency decision-makers at that time, and directly addresses the unestablished fact necessary to substantiate the Veteran's claim of service connection for a left shoulder disability. Specifically, the claim was denied in July 2005 for lack of evidence of a nexus between the Veteran's left shoulder disability and his service. The Veteran alleges that he incurred a left shoulder disability from a combat incident shoulder injury in service when he was blown from his track, and landed on the shoulder, and also sustained left shoulder shrapnel wounds at the time. In connection with his claim to reopen, he has submitted a statement from a former fellow serviceman who describes witnessing the event in service when the Veteran was injured. Also corroborative of the Veteran's account is his private provider's November 2006 opinion that he has shrapnel in his shoulder. This evidence (particularly under the relaxed evidentiary standards afforded under 38 U.S.C.A. § 1154(b)) tends to relate the Veteran's current left shoulder disability to his service, and therefore suffices to reopen the claim of service connection for a left shoulder disability. ORDER The appeal to reopen a claim of service connection for a left shoulder disability is granted. REMAND The Veteran claims that his left shoulder disability (specifically including osteoarthritis) is due to an event in service wherein he was thrown into the air and landed on his shoulder and also sustained shrapnel injuries, in the course of his combat service in Vietnam. It is no longer in dispute that the Veteran sustained trauma to his left shoulder during service. What remains to be resolved is whether his current left shoulder disability may be related to such injury. He has not been afforded a VA examination in this matter. A VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c) (4). As the Veteran has established that he sustained a left shoulder injury in service, and has a current left shoulder disability that may be consistent with the type of injury he sustained, the Board finds that a VA examination/medical opinion is warranted. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the provider(s) of all treatment or evaluation he has received for his left shoulder disability, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO should obtain complete records of all such treatment and evaluation from all sources identified by the Veteran, to specifically include those from Dr. R.L.S. 2. The RO should then arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of his left shoulder disability (and specifically whether his current left shoulder disability was incurred in service. The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of his pertinent medical history, the examiner should note all current left shoulder pathology, and opine whether the left shoulder disability found is at least as likely as not (a 50 percent or better probability) related to the Veteran's service, to include as due to injury/shell fragment wounds, therein. The examiner must explain the rationale for all opinions given. 3. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs