Citation Nr: 1117857 Decision Date: 05/10/11 Archive Date: 05/17/11 DOCKET NO. 09-14 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for left femur disability secondary to status post left total hip replacement, residual arthritis. 2. Whether new and material evidence has been received to reopen the claim for service connection for left shoulder degenerative joint disease, and if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen the claim for service connection for postoperative right rotator cuff injury, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 1949 to February 1950 and from September 1950 to July 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2006 and October 2007 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2007, a statement of the case was issued in February 2009, and a substantive appeal was received in April 2009. The Veteran had mentioned and the RO had purported to adjudicate, in November 2010, the matter of VA compensation under 38 U.S.C.A. § 1151 for left shoulder disability. However, since service connection is being granted for left shoulder disability in this decision, that matter is moot and need not be addressed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of whether new and material evidence has been received to reopen the claim for service connection for right shoulder disability 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. The RO denied service connection for left shoulder degenerative joint disease in June 1999 and informed the Veteran of its decision at the time. He did not appeal that decision. 2. Since that decision, evidence which relates to an unestablished fact necessary to substantiate the claim has been received. 3. The Veteran's left shoulder degenerative joint disease disability was aggravated by service-connected arthritis of weightbearing joints. 4. The Veteran does not have a currently diagnosed left femur disability, other than his service-connected left total hip replacement with arthritis. CONCLUSIONS OF LAW 1. The June 1999 RO rating decision denying service connection for left shoulder degenerative joint disease is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. The claim for service connection for left shoulder degenerative joint disease is reopened based on new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2010). 3. The criteria for service connection for left shoulder degenerative joint disease disability are met based on new and material evidence. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 4. The criteria for service connection for left femur disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Any notice errors regarding the claim for service connection for left shoulder disability are moot, as service connection is being granted. For the left femur disability claim, the RO provided the Veteran pre-adjudication notice by a letter dated in August 2006. The notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), was provided in April 2010. The timing error for the Dingess notice delay was cured by the readjudication of the claim in November 2010. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran examinations in August 2007 and April 2010; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge when all of the evidence including that pertinent to service establishes that it was incurred in service. 38 C.F.R. § 3.303. Arthritis may be presumed to have been incurred in service if it is manifest to a degree of 10 percent within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Left shoulder The Veteran appeals the RO's October 2007 decision denying service connection for left shoulder disability. Service connection was denied by the RO for left shoulder degenerative joint disease disability in June 1999. The RO found that there was no evidence of any in service degenerative joint disease or other left shoulder problem. The Veteran was informed of that decision at the time and did not appeal that decision and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. The RO appears to have reopened and denied the claim on the merits in November 2010. Although the RO may have determined that new and material evidence was received to reopen the claim, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Service connection is in effect for status post left and right total hip replacement, residual arthritis, rated 70 and 50 percent; lumbosacral strain with back pain osteoarthritis, 20 percent; and left and right ankle osteoarthritis, each 20 percent. Left knee arthritis is rated as noncompensable. Currently, a VA examination was conducted in April 2010. At the time, the examiner indicated that given the degree of debilitation from systemic and post-operative osteoarthritis, age, stiffness, and gait alteration of all weightbearing joints, it is at least as likely as not that the Veteran's left shoulder was aggravated by the use of a walker and Canadian full arm crutches over the years. This is new and material evidence because previously, there was no competent evidence connecting the Veteran's left shoulder arthritis disability to service or to a service-connected disability. Accordingly, the claim is reopened. 38 U.S.C.A. § 5108. Moreover, based on the evidence, the Board finds that secondary service connection is warranted for left shoulder degenerative joint disease. The April 2010 VA examination report contains persuasive evidence that the Veteran's left shoulder arthritis has been aggravated by his service-connected arthritis of his weightbearing joints, namely his hips, back, ankles, and left knee. Accordingly, secondary service connection will be granted for left shoulder arthritis. Left femur The Veteran appeals the RO's October 2007 denial of service connection for left femur disability. Service connection is already in effect for status post left total hip replacement with residual arthritis. There were VA examinations in August 2007 and April 2010. There is no competent medical evidence in those reports or elsewhere of record indicating that the Veteran has any other left femur disability currently. Accordingly, service connection can not be granted for left femur disability. In the absence of a current disability, service connection can not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). While the Veteran may feel that he has another left femur disability, he is a layperson, who, as such, is not competent to render a medical diagnosis. Medical evidence is required. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). ORDER Service connection for left shoulder degenerative joint disease is granted as secondary to osteoarthritis of multiple service-connected weightbearing joints. Service connection for left femur disability secondary to status post left total hip replacement is denied. REMAND On appeal is the matter of whether new and material evidence has been received to reopen the claim for service connection for right shoulder arthritis. In October 2007, however, the Veteran alleged that there was clear and unmistakable error (CUE) in an August 1993 RO rating decision which denied service connection for right shoulder disability. The issue of CUE in the August 1993 rating decision is inextricably intertwined with the issue of whether new and material evidence has been received to reopen the claim for service connection for right shoulder disability. Accordingly, it must be addressed by the RO prior to any Board decision on the issue before it, of new and material evidence to reopen a claim for service connection for right shoulder disability. For this reason, remand is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Take any appropriate development and then adjudicate the Veteran's October 2007 claim that the RO committed clear and unmistakable error in denying service connection for right shoulder disability in August 1993. If that decision is unfavorable to the Veteran, provide him with appeal rights regarding it. 2. Thereafter, readjudicate the Veteran's pending claim that he has submitted new and material evidence to reopen a claim for service connection for right shoulder disability, in light of any additional evidence added to the record. If service connection for right shoulder disability remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs