Citation Nr: 1106448 Decision Date: 02/16/11 Archive Date: 02/28/11 DOCKET NO. 05-01 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left shoulder disability, claimed as the result of a head injury in servi. 2. Whether new and material evidence has been received to reopen a claim of service connection for residuals of a head injury to include a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The appellant served in the New York Army National Guard from November 1955 to April 1956. He served on active duty for training (ACDUTRA) from February 4, 1956, to February 18, 1956. In April 1956, he was released from the New York Army National Guard to complete his remaining service obligation of 7 years and 7 months in the Inactive United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied issues on appeal. A hearing was held on June 15, 2007, by means of video conferencing equipment with the appellant in Winston Salem, North Carolina, before Kathleen K. Gallagher, a member of the Board sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) (West 2002) and who is rendering the determination in this case. The Board remanded the case in October 2006 so that the appellant could be scheduled for the hearing before the Board, and it remanded the case in September 2007 and October 2009 for further development of the evidence and to ensure due process. FINDINGS OF FACT 1. The appellant has a current left shoulder condition. 2. The appellant did not become disabled from a left shoulder injury or disease incurred in line of duty during a period of ACDUTRA from February 4, 1956, to February 18, 1956, or from a left shoulder injury incurred or aggravated during any period of inactive duty for training (INACDUTRA) from November 1955 to April 1956. 3. A current left shoulder condition was not caused by an injury or disease incurred in line of duty during a period of ACDUTRA from February 4, 1956, to February 18, 1956, or from an injury, if any, incurred during any period of INACDUTRA from November 1955 to April 1956. 4. No evidence has been submitted of a current psychiatric disorder or of any other current residuals of a head injury, if any, sustained during a period of ACDUTRA from February 4, 1956, to February 18, 1956 or during any period of INACDUTRA from November 1955 to April 1956. CONCLUSIONS OF LAW 1. Service connection is not warranted for a current left shoulder condition. 38 U.S.C.A. §§ 101(2), (16), (24)(B)(C), 1131 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6, 3.303 (2010). 2. A January 1967 rating decision denying service connection for a mental condition to include as due to a head injury is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2010). 3. New and material evidence has not been submitted to reopen a claim for service connection for residuals, to include a psychiatric disorder, of head injury, if any, sustained during a period of ACDUTRA from February 4, 1956, to February 18, 1956, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3/156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. To provide adequate notice with regard to an application to reopen a claim, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, a letter dated in March 2004 satisfied the notice requirements with regard to claims for service connection in general except that it did not inform the appellant that if service connection were granted a disability rating would be assigned for the degree of disability and an effective date would be assigned. In addition, the March 2004 letter did not satisfy the requirements with regard to the claim to reopen the previously denied claim for service connection for residuals of a head injury because, although it informed the appellant that he must submit new and material evidence to reopen that claim for service connection and it defined what was meant by new and material evidence, it did not specify the reason for the prior denial of the claim. However, these defects in the notification letter sent before the first adjudication of the claims in July 2004 were later cured in letters sent after the July 2004 rating decision, and the claims were subsequently readjudicated. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Specifically, letters informing the appellant that if service connection were granted a disability rating would be assigned for the degree of disability and an effective date would be assigned were sent in January 2007 and August 2008, and readjudication of the claims followed in several supplemental statements of the case (SSOCs). With regard to the application to reopen the claim for service connection for residuals of a head injury, the Board remanded the case in September 2007 and specifically ordered that notification be sent that met the requirements for such notice. The August 2008 letter sent in this regard, while providing an adequate statement of what constitutes new and material evidence, did not provide adequate notification of the reasons for the prior final denial, stating merely, "Your claim was previously denied because Not [sic] service connected." See August 2008 letter. However, the poor nature of this explanation was recognized, and another letter was sent in May 2009 in which a more detailed explanation of the prior final denial was given as follows: You were previously denied service connection for residuals of a head injury, including anti-social personality disorder. You were notified of the decision on January 31, 1967. The appeal period for that decision has expired and the decision is now final. In order to reopen your claim, we need new and material evidence. Your claim was previously denied because your service medical records contained no indication that you sustained a head injury during your period of active duty for training and also an anti-social personality disorder was not a disability for which service connection could be granted. Therefore, the evidence you submit must be new and relate to this fact. The Board notes that this letter meets the requirements of a notice letter for an application to reopen a claim because it looks at the bases for the denial in the prior decision and describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The claim was readjudicated after this letter was sent in August 2009 and September 2010 SSOCs. Prickett, 20 Vet. App. at 377-78. Accordingly, the Board concludes that the duty to notify has been satisfied in this case with respect to both claims on appeal. The duty to assist has also been fulfilled in this case. The case has been remanded three times to ensure that the appellant had his request for a hearing met and to obtain additional records, particularly additional service treatment and personnel records. The appellant has had a hearing before the Board, and the last remand resulted in additional service records being obtained from the New York National Guard. Although the National Personnel Records Center sent a letter to VA in September 2010 stating that it could not respond to a request made by mail for a search for personnel records but only to an electronic request (Personnel Information Exchange System or "PIES"), electronic requests had been done previously in this case for additional records and have resulted in responses that there were no additional records. It appears to the Board that nearly all records needed to make a decision on the claims have been obtained, and that requests for additional records would be futile. 38 C.F.R. § 3.159(c)(1). In this regard, service treatment records, including a complete enlistment examination report, dated in November 1955, upon the appellant's enlistment into the New York National Guard; service treatment records from the appellant's brief two-week ACDUTRA period at Fort Jackson, South Carolina; and a report of examination, dated in November 1958 during the appellant's time in the inactive Army Reserve, have been obtained. Additional service treatment and personnel records have been obtained from the New York National Guard. Although the November 1958 examination report refers to another examination report dated a few days earlier which has not be obtained, the Board concludes that sufficient efforts were made to obtain this report. The November 1958 examination report is in the envelope with the original service treatment records which were received from the National Personnel Records Center (NPRC) in St. Louis by the RO in January 1967 in connection with the appellant's original claim for VA compensation. The report refers to a "Routine Evaluation Physical Examination conducted at this station 14 Nov 58 - Negative for N[euro]P[sychiatric] disorders." It is not known why the November 14, 1958, examination report was not included with the other service treatment records in 1967. However subsequent requests for this report and other records from the NPRC were all made after July 1973, when there was a fire at the NPRC. An electronic request made to the NPRC in April 2004 resulted in the response that the appellant's records were "fire-related", i.e., that his records would have been in an area of the NPRC destroyed by the fire. The RO sent the appellant a letter informing him of this in response from the NPRC in June 2004. A second request was made to the NPRC in December 2008 with the same response being received. In February 2010, the RO sent a request for service records to the New York Adjutant General and in response received the appellant's complete personnel records and an additional service treatment record. Specifically, the service treatment record was a copy of the Report of Medical History from the November 1955 examination which was conducted in connection with the appellant's enlistment to the National Guard. Although the Report of Medical Examination was in the folder with the original service treatment records obtained in 1967, the Report of Medical History was not. The appellant has repeatedly alleged that he was treated for his head injury shortly after his period of ACDUTRA in 1956 at Fort Indiantown Gap and the Philadelphia VA hospital. However, at the hearing before the Board in June 2007, he acknowledged that he may have been confused about having been treated at the Philadelphia VAMC and may have only been treated at the Army Hospital at Fort Indiantown Gap, Pennsylvania. See Hearing Transcript at page 8. He stated that this treatment was after his period of ACDUTRA in 1956 and before the treatment in 1958 at Valley Forge Army Hospital. Id. Although the RO was unsuccessful in its attempts to obtain any treatment records from this time period, the Board concludes that the RO fulfilled its duty to assist in trying to obtain these records and that such records are not needed to decide the appeal of the issue of whether new and material evidence has been submitted reopen the claim for service connection for residuals of a head injury to include a psychiatric disorder. The records are not needed, as will be discussed in more detail in the decision below, because even assuming that such records were to show the presence of a psychosis within one year of ACDUTRA, the advantage of the evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010) (holding that "a claimant whose claim is based on a period of [ACDUTRA] can never be entitled to the presumption of service connection" for chronic diseases manifesting to a degree of 10 percent or more with one year from the date of separation from active service under section 1112 of the statute (emphasis in original); see Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Based on the foregoing, the Board concludes that VA has done everything reasonably possible to assist the appellant in obtaining his complete service records. Thus, the Board finds compliance with the applicable development procedures, and there is no indication that there is additional available evidence to substantiate the appellant's claims that has not been associated with the claims folder. In addition, many private medical records have been submitted by the appellant or obtained by VA upon authorization for their release by the appellant. Accordingly, the Board concludes that VA has fulfilled its duty to assist the appellant in obtaining all treatment records that have been adequately identified by the appellant. The appellant has not been afforded VA examinations in connection with his claims. A VA examination must be provided when (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006); 38 C.F.R. § 3.159(c)(4); see also 38 U.S.C.A. § 5103A(d)(2); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting that the three subsections of the statutory provision contain different evidentiary standards-- "competent evidence," "evidence . . . indicat[ing]"," and "medical evidence"). In this case, the Board concludes that an examination is not needed concerning the claim for service connection for a left shoulder condition because there is no medical or lay evidence showing a left shoulder injury or disease during the period of ACDUTRA or a shoulder injury during a period of INACDUTRA, if any. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed.Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). Moreover, with regard to the application to reopen the claim for service connection for the residuals of a head injury, the requirements for providing a medical examination or opinion apply to such an application only if new and material evidence is presented or secured, and in this case, none has been. 38 C.F.R. § 3.159(c)(4)(iii). For these reasons, the Board concludes that the duty to assist the appellant has been satisfied in this case. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The term "Veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2); see also 38 C.F.R. § 3.1(d). "The term 'active military, naval, or air service' includes active duty, any period of active duty for training 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 inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). The term "active duty for training" includes, "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)(A); 38 C.F.R. § 3.6(c)(1). The term "inactive duty for training" includes, "duty (other than full-time duty) prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law" or "special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A),(B); 38 C.F.R. § 3.6(d)(1),(2). The term "active duty for training" includes, "in the case of members of the Army National Guard or Air National Guard of any State, full-time duty under" certain sections of title 32, United States Code, including section 502. 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c)(3). The term "inactive duty for training" includes, "[i]n the case of members of the Army National Guard or Air National Guard of any State . . . duty (other than full-time duty) under" certain sections of title 32, United States Code, including section 502. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d)(3). Analysis In this case, service personnel records show that the appellant served in the New York Army National Guard from November 1955 to April 1956. His November 1955 Enlistment Examination report consists of a Report of Medical History and a Report of Medical Examination. On the former, the appellant denied having or having ever had each of the many disorders and conditions about which the form inquires, including a painful or "trick" shoulder; depression or excessive worry; and nervous trouble of any sort, and he stated that his health was excellent. On the Report of Examination, clinical evaluation of the upper extremities was normal, and the examiner noted that clinical evaluation of the psychiatric system was "not required". Both service treatment and personnel records show his birthdate as being in May 1938. Personnel records, including NGB Forms 22 and 23, show that the appellant served on ACDUTRA from February 4, 1956, to February 18, 1956. His service treatment records show that on February 10, 1956, he was seen at Fort Jackson, South Carolina, Army Hospital. The examiner noted, "[Sixteen] y[ea]r old awaiting confirmation of age-threatening to go AWOL-under guard" and "can't remember events" and "LOD [Line of Duty] yes". The examiner also noted, "referred MHC [mental hygiene clinic]". The same examiner reiterated nearly the same note on a Consultation Sheet: "[Sixteen] y[ea]r old trainee awaiting age confirmation[;] Threatening to go AWOL[;] Can't remember events well[;] Under guard[;] Evaluate." The provisional diagnosis was "Hysteria?" The Consultation Report shows the following notes, "Schizophrenic reaction. Hospitalization." On an Abbreviated Clinical Record, dated February 10, 1956, a physician noted, "[Sixteen] year old patient with loss of reality, schizoid tendencies, ideas of persecution, hallucinations, auditory suicide thoughts. Schizophrenic Reaction." The appellant was admitted to the Army Hospital at Fort Jackson for five days. The Narrative Summary from the Army Hospital reflects that the appellant stated that he entered the Army fraudulently and had been up for a minority discharge. After entering the active service, he decided to tell the truth about his age but that, when his discharge was delayed, he told the doctor at the Mental Hygiene Clinic that he wanted to kill himself so he could get in the hospital. He was very upset about the delay in discharge. During the course in the hospital, the Red Cross contacted some of the appellant's family who stated that his birth date was in May 1938. (A copy of the appellant's November 1955 Report of Medical Examination which was obtained by VA in March 2010 from the New York Adjutant General includes a handwritten note, which is not on the copy in the service treatment records, which states, "Underage" and indicates a birthdate in May 1939.) The diagnosis was "Antisocial personality, chronic, severe, manifested by immature, egocentric type individual who maintains no real loyalty to any group, person or code, who attempts to gain his own selfish ends by lying and trying to gain the help and confidence of those about him." It was noted that this disorder was not considered to have been incurred in line of duty but to have existed prior to service. When he was discharged to duty on February 14, 1956, he reported to sick call claiming to have taken 30 aspirin tablets after having been discharged from the hospital. He was re-admitted for one day and discharged on February 15, 1956. A Certification of Military Service from the National Personnel Records Center (NPRC), dated June 18, 1985, reflects that the appellant was honorably released from ACDUTRA on February 18, 1956, and that he had no active service other than for training purposes. NGB Form 22 reflects that he was discharged from the New York National Guard in April 1956 "without personal notice by reason of non-attendance" and the reason for the discharge was "continued absence from military duties." The Form also indicates that he was released from the New York Army National Guard to complete his remaining service obligation of 7 years and 7 months in the Inactive United States Army Reserve. In addition, in the service treatment records is a Clinical Record-Consultation Sheet, dated November 19, 1958. The request for the consultation was from PQMD [Philadelphia Quartermaster's Depot?] to the Neuropsychiatric ("NP") Clinic of VFAH [Valley Forge Army Hospital]. Under "Reason for Request" it was noted, "Referred for NP consolation per request of the Department of the Army, Washington 25, D.C. Routine Evaluation Physical Examination conducted at this station 14 Nov[ember 19]58 - Negative for NP disorders." On the Consultation Report, the examiner noted, apparently based on history provided by the appellant, that the appellant was at that time in the inactive Reserves since 1956, after having served for approximately two years in Fort Jackson, South Carolina, in an Artillery Division, where he "did well in the service, had no administrative difficulties and was discharged honorably." The examiner also noted that the appellant complained that he had been having severe unilateral headaches, mainly on the left side, and that he recalled, "while in service, that he struck the left side of his head against a beam and following this had a severe headache and was hospitalized, where x-rays were taken and considered negative. Mental status examination reflected that "all the indices of a current active psychosis are absent." The examiner's impression was that no psychiatric disease was found. He recommended that the appellant go to the VA hospital in his district for treatment for his headaches. The appellant filed his original claim for service connection for residuals of a head injury in October 1966. The RO denied the claim in January 1967 because antisocial personality disorder, the disorder shown during ACDUTRA, was a constitutional or development abnormality and not a disability under the law. See 38 C.F.R. § 3.303(c). The appellant did not appeal this rating decision and it is final. 38 U.S.C.A. § 7105(c). In July 1995, the RO received from the appellant a claim on which he noted, "Hospitalized for head injury received from an Army Truck resulting in headaches and confusion." The RO wrote to the appellant in August 1995, informing him that service connection for residuals of a head injury had previously been denied and that that decision was final. The RO notified him that if he wished to reopen his claim he must submit new and material evidence. The appellant resubmitted a copy of his claim to reopen in September 1995. In a separate statement, the appellant alleged that he had had headaches since an accident sustained at Fort Jackson, South Carolina. He stated that after his injury he was sent back to his reserve outfit in New York. In response, the RO sent the appellant a letter requesting that he submit evidence showing headaches and showing any residuals that may exist at present. The appellant never responded to this letter. In March 2004, the RO received a claim for service connection for residuals of a head injury in service including an eye disability and a left shoulder disability. The RO construed this claim as also including a request to reopen the claim for service connection for an antisocial personality claimed as a head injury. The RO denied this claim in the July 2007 rating decision from which this appeal arises. The Board denied service connection for the eye disability in October 2009. Service Connection for a Left Shoulder Condition The evidence of record reflects treatment for a left shoulder condition in recent years. The earliest medical evidence of this is in a private medical report, dated in October 1998, reflecting that the appellant was in a car accident on October 17, 1998, and complained of left shoulder pain. Another private medical report, dated in May 1999, noted that the appellant was in a car accident and complained of some shoulder pains and had been seen in the ER and x-rays were negative. On examination, upper extremities revealed that the patient was guarding the left shoulder very stiffly but no gross deformity was noted. Another report in July 1999 showed upper extremities were within normal limits, and another, dated in December 1999, reflected complaints that the shoulders hurt. The assessment was osteoarthritis. A report in August 2000 showed complaints that the shoulder hurt, while in November 2000 upper extremities were within normal limits. In October 2002, a surgery was performed on the left shoulder, and in June 2003, the appellant complained of left shoulder pain for the past six to seven months. In January 2004, the appellant complained of left shoulder pain, and it was noted that he had fallen in June and that he has had that shoulder operated on in the past. In October 2005, the HPI [history of present illness] included a note that the appellant was having pain in the left shoulder. Musculoskeletal examination of the left upper extremity showed that the shoulder was tender anteriorly and had full range of motion and good strength. In March 2006, a report showed complaints of recurrent shoulder pain and rotator cuff injuries back in 2002 and had surgery. In May 2006, it was noted that the appellant had had surgery for a left rotator cuff tear, left shoulder impingement, left shoulder acromioclavicular joint arthritis. In April 2007, the appellant complained of left shoulder pain, and it was noted that he had had surgery on the shoulder. It was noted that the pain came and went. On musculoskeletal examination of the left upper extremity, the shoulder was minimally tender anteriorly, strength was normal, and there was full range of motion. Based on this evidence, the Board concludes that the appellant does have a left shoulder condition, and so the evidence does indeed show that the appellant currently has the disability for which benefits are being claimed. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). However, there is no evidence in this case that the current left shoulder disorder had its onset in active service or is otherwise the result of a disease or injury incurred in active service. With regard to the latter, the Board notes that the appellant served only on ACDUTRA for two weeks in February 1956 and perhaps on periods of INACDUTRA between November 1955 and February 1956. After he was released from ACDUTRA, he was discharged from the National Guard in April 1956 because of continued absence from military duties, and so it is unlikely that he served on any periods of INACDUTRA (weekend drills) with the Guard between February 1956 and April 1956. In order to prevail on the claim for service connection for a left shoulder condition when one has served only on ACDUTRA, the burden is on the appellant to show, not only that a left shoulder disease or injury was incurred coincident with such a period of service, but also that it was caused by that service. Cf. Donnellan v. Shinseki, No. 07-2041, slip op at 7 (U.S. Vet. App. November 17, 2010) (quoting Smith v. Shinseki, 24 Vet. App. 40, 48 (2010) that, in a claim for service connection based on aggravation of a preexisting condition during ACDUTRA, a claimant is required to show by direct evidence "both that a worsening of a condition occurred during the period of [ACDUTRA] and that the worsening was caused by the period of [ACDUTRA]." (emphasis in Smith). The service treatment records show no complaints, findings, or diagnoses pertaining to the left shoulder. The earliest medical evidence of left shoulder complaints is dated in 1998 at which time they were attributed to a car accident in October of that year. This was more than 40 years after service. As to lay evidence, there is not any, other than the appellant's general claim that he feels the left shoulder injury was the result of an injury to his head sustained during the two weeks ACDUTRA in February 1956. Specifically, in his March 2004 claim, he stated merely, "I would like to also file service connected condition (sic) for left shoulder secondary to head injury." He has never provided any details about why he feels that the left shoulder condition is the result of a head injury during ACDUTRA, if any. On his notice of disagreement, he stated merely, "I feel the left shoulder . . . condition should be service-connected." Likewise on his VA Form 9 substantive appeal, he stated nothing specific about the shoulder. At the hearing before the Board in June 2007, he testified that he did complain about it when being treated at the hospital at Fort Jackson in 1956. See Transcript, page 9. The Board notes, however, that not only were no complaints about the left shoulder shown in the Fort Jackson records but also no mention was made about a left shoulder condition two years later in the 1958 report from Valley Forge Army Hospital. Moreover, the appellant did not claim service connection for a left shoulder disorder when he submitted his original claim in 1967. The absence of complaints of a left shoulder condition shown on medical reports contemporaneous with the period of ACDUTRA and within two years thereafter and that the appellant did not file a claim for the condition with his original claim for disability benefits bodes against a finding that the appellant became disabled by a left shoulder disability which was caused by a disease or injury incurred during the two-week ACDUTRA period in 1956 and that that disability has continued to the present day. As noted above, the first documentary evidence of any left shoulder complaints is dated in 1998, and at that time the left shoulder disorder was attributed to the appellant having been in a recent car accident. Thus, there is not only no evidence that a current left shoulder disorder was caused by the period of ACDUTRA in RFebruary 1956 or any period of service in the National Guard before or after that brief period of ACDUTRA, but also no evidence that a left shoulder disorder was incurred during or coincident with that brief period of ACDUTRA or any period of service in the National Guard before or after the period of ACDUTRA. Rather, the evidence of record shows that a left shoulder condition began in 1998 following a car accident in October of that year. Based on this evidence, the Board concludes that service connection for a left shoulder disorder is not warranted because there is neither medical nor lay evidence pertinent to a left shoulder condition from the period of service in the 1950s or for forty years thereafter. Accordingly, the preponderance of the evidence is against the claim for service connection for a left shoulder condition, and the claim must be denied. See Gilbert, 1 Vet. App. at 54. New and Material Evidence to Reopen a Claim for Service Connection for Residuals of a Head Injury to Include a Psychiatric Disorder As noted above, the appellant filed his original claim for service connection for residuals of a head injury in October 1966. The RO denied the claim in January 1967 because antisocial personality disorder, the disorder shown during ACDUTRA, was a constitutional or development abnormality and not a disability under the law. See 38 C.F.R. § 3.303(c). The appellant did not appeal this rating decision and it is final. 38 U.S.C.A. § 7105(c). In March 2004, the RO received a claim for service connection for residuals of a head injury in service including an eye disability and a left shoulder disability. The RO construed this claim as also including a request to reopen the claim for service connection for an antisocial personality claimed as a head injury. The RO denied this claim in the July 2007 rating decision from which this appeal arises. The Board notes that, other than the eye and left shoulder disability, the appellant has not alleged any other current disability is associated with a head injury during his two weeks of ACDUTRA. The evidence associated with the current claim to reopen a claim for service connection for residuals of a head injury consist of private medical records dated as early as 1989. With regard to headaches, which the appellant alleged resulted from a head injury in service in 1995, a May 1998 private emergency room record shows a history of headaches for one year since a motor vehicle accident. An October 1998 record shows a history of a car accident in which the appellant hit his head on the window and broke his glasses. Numerous recent private treatment records-specifically dated in November 2001; November 2002; September 2003; October 2003; November 2003; January 2004; July 2004; August 2004; January 2005; October 2005; January 2006; and April 2007-show that the appellant denied headaches when the doctor took a history of present complaints. With regard to any current psychiatric disorder, private medical records show several mental status evaluations in recent years- namely in June 2005 where judgment and insight were intact; and evaluation of mood and affect showed no depression, anxiety, or agitation. Similar observations regarding mood and affect showing no depression, anxiety, or agitation were noted in January 2005; October 2005; January 2006; August 2006; December 2006; and April 2007. No other evidence has been presented or secured that is relevant to a current psychiatric disorder. Because no evidence has been submitted of a current psychiatric disorder or of any other current residuals of a head injury, if any, sustained during a period of ACDUTRA from February 4, 1956, to February 18, 1956 or during any period of INACDUTRA from November 1955 to April 1956, the Board concludes that new and material evidence has not been submitted to reopen a claim for service connection for residuals, to include a psychiatric disorder, of head injury, if any, sustained during a period of ACDUTRA from February 4, 1956, to February 18, 1956, and the claim may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3/156 (2010). ORDER Service connection for a left shoulder condition is denied. New and material evidence not having been submitted, the application to reopen a claim for service connection for residuals, to include a psychiatric disorder, of a head injury, if any, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs