Citation Nr: 1122390 Decision Date: 06/09/11 Archive Date: 06/20/11 DOCKET NO. 09-06 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously-denied claim for entitlement to service connection for residuals of a right shoulder injury. 2. Entitlement to service connection for residuals of a right shoulder injury. 3. Whether new and material evidence has been received to reopen a previously-denied claim for entitlement to service connection for a heart disorder. 4. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder, anxiety disorder and depression. 5. Entitlement to service connection for a left shoulder disorder, to include as secondary to residuals of a right shoulder injury. 6. Entitlement to service connection for a neck disorder, to include as secondary to residuals of a right shoulder injury. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 1970 to November 1974, and with additional service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). In the December 2008 rating decision, the RO denied entitlement to service connection for posttraumatic stress disorder, and it declined to reopen the previously-denied claim for entitlement to service connection for residuals of a right shoulder injury. In the April 2009 rating decision, the RO denied the claims for entitlement to service connection for left shoulder disorder and neck disorder, and declined to reopen the previously-denied claim for entitlement to service connection for heart disorder. The RO originally denied the Veteran's claim for residuals of a right shoulder injury in a March 1975 rating decision by finding that the evidence of record did not show that the Veteran had a current diagnosed disorder that was caused or aggravated by his period of service. The Veteran did not appeal the decision and the March 1975 rating decision is the last final decision of record. The Veteran now seeks to reopen his claim. The Veteran's claim for a heart disorder was originally denied in a March 1988 rating decision, because the RO found that there was no medical evidence that linked the Veteran's current diagnosed heart disorder to his period of service. The Veteran did not appeal the decision and it became final. In November 1999, the Veteran sought to reopen his claim, but in a May 2000 rating decision, the RO found that no new and material evidence had been received to reopen the previously-denied claim for heart disorder. The Veteran did not appeal that decision and the May 2000 rating decision is the last final decision of record. The Veteran now seeks again to reopen his claim. In February 2011, the Veteran testified before the undersigned at a video conference hearing. During the hearing, the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. The Board is cognizant that during the pendency of this appeal, the Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) held that VA should consider alternative current conditions within the scope of the filed claim. Id. A preliminarily review the case at hand shows that Clemons would be applicable to the Veteran's original claim for service connection for posttraumatic stress disorder, and the matter has been re-characterized as entitlement to service connection for a psychiatric disorder, which encompasses all diagnosed psychiatric disorders. During the February 2011 hearing, the Veteran's representative, on the Veteran's behalf, raised a claim of whether the March 1975 rating decision was clearly and unmistakably erroneous for failing to grant entitlement to service connection for residuals of a right shoulder injury. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and therefore, the Board does not have jurisdiction over it. It is referred to the AOJ for appropriate action. The Board will address whether new and material evidence has been received to reopen the previously-denied claim for entitlement to service connection for a heart disorder, and the remainder of the issues will be addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a March 1975 rating decision, the RO denied service connection for residuals of a right shoulder injury by finding that the evidence of record did not show that the Veteran had a currently-diagnosed disorder that was caused or aggravated by his period of service. The Veteran did not appeal that decision and it is final. 2. Since the March 1975 rating decision, the Veteran submitted new and material evidence that relates to the unestablished fact of a current diagnosed right shoulder disorder (tendinitis with degenerative changes), that is necessary to substantiate the claim for service connection for residuals of a right shoulder injury and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW The March 1975 rating decision that denied service connection for residuals of a right shoulder injury became final. New and material evidence to reopen the previously-denied claim for service connection for residuals of a right shoulder injury has been received. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.156(a) 20.1103 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Specific to requests to reopen a previously-denied claim for service connection, VA must provide notice that describes the basis for the previous denial, as well as the reopening criteria and the criteria for establishing the underlying claim for service connection found to be unsubstantiated in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, given the Board's favorable disposition of the petition to reopen the Appellant's previously-denied claim for residuals of a right shoulder injury, the Board finds that all notification and development actions needed to fairly adjudicate the appeal with regard to that issue have been accomplished. Any lapse in duties to notify or assist has not prejudiced the claim, and the purpose of the remand will be to ensure the full development of the claim. II. Petition to Reopen a Previously-denied Claim In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim for entitlement to service connection for residuals of a right shoulder injury was originally denied in a March 1975 rating decision. At that time, the record contained the Veteran's service treatment records from his period of Marine Corps service and a general VA examination report dated March 1975. The service treatment records contained the Veteran's October 1970 entrance examination report, which showed a notation that the Veteran had a one-and-one-half-inch scar on the right shoulder. Clinical evaluation of the upper extremities was normal. In a Report of Medical History completed by the Veteran at that time, he denied ever having or having then painful or trick shoulder. The October 1974 separation examination report also shows a notation that the Veteran had a scar on the right shoulder. Clinical evaluation of the upper extremities was normal. There was no evidence of complaints, treatment or diagnosis for any right shoulder problems during the Veteran's period of service. The report of the March 1975 VA general examination shows the Veteran reported that he injured his right shoulder in March 1971 after he was attacked by other Marines and thrown into a glass barracks window. The objective findings from the report show the Veteran had limited, painful motion in his right shoulder, and there was evidence of a healed residual scar on the acromioclavicular area of the right shoulder. An x-ray taken at that time showed no evidence of a fracture or any soft tissue abnormality. The Veteran was diagnosed with arthralgia of the right shoulder joint and with an old abrasion over the acromioclavicular area of the right shoulder. In the March 1975 rating decision, the RO determined that the evidence of record did not show that the Veteran had a currently-diagnosed disorder that was caused or aggravated by his period of service. Essentially, the RO determined there was no current disability. Subsequent to the rating decision, additional treatment records have been associated with the claims folder. VA treatment records show that the Veteran has been diagnosed with rotator cuff tendinitis and degenerative arthritis in his right shoulder. See VA treatment record dated June 2008. The Board finds that the additional evidence received since the March 1975 rating decision relates to the unestablished fact necessary to substantiate the claim. Specifically, the additional evidence provided includes medical evidence of a current diagnosis of rotator cuff tendinitis and degenerative arthritis in his right shoulder. This has cured the defect of no current disability. The Board concludes the additional evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim. Thus, new and material evidence has been received pursuant to 38 C.F.R. § 3.156(a), and thereby meets the requirements to reopen. On that basis, the claim for service connection is reopened. 38 C.F.R. § 3.156. ORDER New and material evidence having been received, the application to reopen a claim of service connection for residuals of a right shoulder injury is granted. REMAND The Veteran seeks to reopen a previously-denied claim for service connection for a heart disorder, and he seeks entitlement to service connection for residuals of a right shoulder injury, psychiatric disorder, left shoulder disorder and neck disorder. Based on a review of the record, the Board finds that additional development is needed prior to the adjudication of these claims. With respect to the Veteran's petition to reopen the previously-denied claim for a heart disorder, during the February 2011 video conference hearing, the Veteran testified that he was receiving Social Security Administration (SSA) disability benefits for his heart problems. The United States Court of Appeals for Veterans Claims (Court) has held that where VA has notice that the Veteran is receiving disability benefits from Social Security Administration, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits and the supporting medical documents on which the decision was based. See Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996). Also, in Tetro v. Gober, 14 Vet. App. 110 (2000), the Court held that VA has the duty to request information and pertinent records from other Federal agencies, when on notice that such information exists. As such, the Veteran's Social Security Administration records should be obtained prior to the adjudication of his petition to reopen his previously-denied claim for service connection for a heart disorder. As noted above, with regard to the claim for service connection for residuals of a right shoulder injury, VA has received additional evidence which is sufficient to reopen the Veteran's claim; however, additional development is necessary prior to adjudication of the appeal on the merits. Specifically, a remand is required to provide the Veteran with a new VA examination. The Veteran's service treatment records show that he had a residual scar on his right shoulder upon his entrance into and separation from service, but there were no other right shoulder abnormalities recorded at those times. The March 1975 VA examination report shows that the Veteran had limited, painful motion in his right shoulder, and there was evidence of a healed residual scar. An x-ray was negative for evidence of a fracture or soft-tissue abnormality. The Veteran is competent to report a right shoulder injury in service. The fact that he submitted a claim for such immediately after service tends to prove his allegation. He also has evidence of a current disability. The Board finds that the Veteran is entitled to a VA examination in connection with this claim. Next, regarding the Veteran's claims for service connection for left shoulder and neck disorders, the Veteran asserts that he injured his left shoulder and neck during the same incident when his right shoulder was injured. He reports that he has experienced left shoulder and neck pain since his period of service. In the alternative, the Veteran asserts that his left shoulder and neck disorders are secondary to his right shoulder disorder. The Veteran reports that his current left shoulder and neck problems resulted from his having to compensate for right shoulder pain. The service treatment records do not show any complaints, treatment or diagnoses for any left shoulder or neck problems during the Veteran's period of service, and the only post-service medical evidence of any left shoulder problems came 23 years after the Veteran's separation from his second period of service. There is no medical evidence of any neck problems or neck disorder. The Board does not find the Veteran's allegations of in-service injuries to his left shoulder and neck credible. Had the Veteran injured his left shoulder and neck at the same time he injured his right shoulder, the Board finds he would have included claims for service connection for those disabilities at the time he filed his claim for service connection for the right shoulder disability right after service discharge. Thus, the Board rejects the allegations of in-service left shoulder and neck injuries in service. However, given the alternative assertion that these disabilities are secondary to the right shoulder disorder, the left shoulder disorder and the neck disorder claims are inextricably intertwined with the Veteran's right shoulder claim. As such, when the VA examination is provided to determine if the right shoulder disability had its onset in service, the RO/AMC should solicit a medical opinion as to the likelihood that any current left shoulder and/or neck disorder is secondary to or was aggravated by his right shoulder disorder. Turning to the Veteran's claim for service connection for psychiatric disorder, to include posttraumatic stress disorder, a remand is needed to verify the alleged inservice stressor events and to provide him with a VA psychiatric examination. The Veteran maintains that during his Marine service, he was stationed in Nicaragua for about three weeks in 1973 to assist in the reconstruction efforts of a United States Embassy in Managua after an earthquake caused widespread damage and left many residents injured and homeless. An internet search shows that a large earthquake occurred on the areas near Managua, Nicaragua, on December 23, 1972, which included the collapse of the United States Embassy. The available records, however, does not show that the Veteran was stationed in Nicaragua at any point during his period of service. A further attempt should be made to verify the occurrence of the allege stressor events and the Veteran's presence at the location and time of the incident. In this regard, the RO/AMC should attempt to verify the Veteran or his unit's presence in Nicaragua in 1973 while attached to the Marine Barracks at Rodman Canal Zone in Panama. The RO/AMC should undertake any other efforts to obtain additional information that may corroborate the Veteran's claimed stressors. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). The record already provides RO/AMC with sufficient information to submit a request to the Joint Service Records Research Center (JSSRC) to investigate and attempt to verify the Veteran's reported stressor event. The RO/AMC should direct JSRRC to review Operational Reports and Lessons Learned (ORLLs) and morning reports from the units indicated by the Veteran. If an inservice stressor event cannot be verified, the RO/AMC should provide a memorandum in the file explaining the procedures undertaken in attempt to verify the reported events, as well as any records or explanation as to why the attempts were not fully successful. If the occurrence of an inservice stressor event is verified, the Veteran should be afforded a VA psychiatric examination to ascertain whether he currently has a diagnosis of posttraumatic stress disorder based upon any verified stressor. Even if the inservice stressor event is not verified, the Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of any psychiatric disorder, other than posttraumatic stress disorder. As mentioned above, the Court's holding in Clemons is applicable here as the records reflect several other mental disorders. The available post-service treatment records show that the Veteran has also been diagnosed with anxiety disorder, depression, and a borderline personality disorder. He has been diagnosed with psychiatric problems as earlier as 1987. See September 1987 private treatment record dated and December 1987 VA hospitalization summary report. Therefore, the other diagnoses are to be considered as part of the underlying claim. To date, however, the RO has not adjudicated this claim so broadly as to incorporate psychiatric diagnoses other than posttraumatic stress disorder. A VA examination is needed to identify the nature and likely etiology of any psychiatric disorder other than posttraumatic stress disorder. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). Prior to any examination, the RO/AMC should seek the Veteran's assistance in obtaining any outstanding records of pertinent VA or private treatment. Last, a remand is needed to obtain any outstanding copies of the Veteran' service treatment records. A review of the record does not show that any attempt has been made to obtain the Veteran's service treatment records from his Army Reserve service. The Board finds that a remand is necessary for the RO/AMC to attempt to obtain these service treatment records. The RO/AMC should contact any appropriate facility or records repository for the Veteran's service treatment records from his service in the Army Reserve. Prior to contacting the appropriate records facilities, the RO/AMC should ask the Veteran to identify the units he served in over the various periods with the military, as well as any other pertinent information that may assist in locating his service treatment records. Further, the RO/AMC should ask the Veteran to submit any copies of service treatment records that he has in his possession. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC ensure that all notification and development action required by the VCAA is completed. In particular, the RO/AMC should ensure that notification is provided regarding requirements and development procedures necessary to substantiate a claim for secondary service connection with regard to the Veteran's claims for service connection for left shoulder and neck disorder and for direct service connection for a psychiatric disorder, to include anxiety disorder and depression. 2. By appropriate means, and with any necessary assistance from the Veteran, the RO/AMC should seek to identify and obtain any outstanding records of pertinent medical treatment that are not yet on file. 3. The RO/AMC should contact the Social Security Administration and request copies of the administrative decision and all medical records considered in the Veteran's claim for Social Security Administration disability benefits (and any subsequent disability determination evaluations). All records obtained should be associated with the claims file. If these records are not available, certification of such should be placed in the record. 4. The RO/AMC should contact the Veteran and ask him to identify the units that he was assigned to during his service in the Army Reserve and ask the Veteran to submit any copies of his service records that he has in possession. 5. The RO/AMC should contact all the appropriate facilities to request the complete service treatment records of his service in the Army Reserve. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of the RO/AMC's attempts to locate his service records from service in the Army Reserves, as well as any further action to be taken. 6. The RO/AMC should take appropriate action to contact the U.S. Army and Joint Services Records Research Center (JSRRC), or other official source, to investigate and attempt to verify the Veteran's reported stressors. JSRRC should also be asked to provide the histories of the Veteran's units during the time he was in Rodman Canal Zone in Panama from 1972-1973. In particular, the JSRRC should review Operational Reports and Lessons Learned (ORLLs) and morning reports from Marine Barracks at Rodman Canal Zone in Panama and note whether any units were sent to Managua, Nicaragua in 1973 to participate in the reconstruction of the United States Embassy as described by the Veteran. Documentation of the exact incidents described by the Veteran is not necessary. If information that is more detailed is need for this research, the Veteran should be given an opportunity to provide it. 7. Following the receipt of any response from the entities as outlined above, the RO/AMC should prepare a report detailing their efforts, any responses received, and the results of their requests. If no response has been received, the RO should so state in its report. This report is then to be added to the claims folder. 8. Following the above, the RO/AMC must make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor or stressors in service. If the RO/AMC determines that the record verifies the existence of a stressor or stressors, the RO/AMC must specify what stressor or stressors in service it has determined are established by the record. In reaching this determination, the RO/AMC should address any credibility questions raised by the record. 9. The RO/AMC should then schedule the Veteran for an appropriate VA examination for the following purpose: to determine (a) whether the Veteran has a psychiatric disorder (including symptomatology that satisfies the required criteria under DSM-IV for a diagnosis of posttraumatic stress disorder as defined under 38 C.F.R. § 4.125); and, if so, then (b) to ascertain whether any such diagnosed disorder is related to service. The examiner should specifically indicate whether or not the Veteran has a diagnosis of posttraumatic stress disorder (under 38 C.F.R. § 4.125) due to a verified stressor event. If posttraumatic stress disorder is not diagnosed, the examiner should explain why the diagnosis was not made. For any other psychiatric disorder diagnosed, the examiner should provide a medical opinion indicating whether it is at least as likely as not (e.g., a 50 percent or greater probability) that such condition is related to service. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. 10. Once all the available treatment records have been associated with the claims folder to the extent possible, the RO/AMC should then schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and likely etiology of any right shoulder, left shoulder and neck disorders. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings from the examination, the examiner is requested to provide diagnoses corresponding to the claimed right shoulder, left shoulder and neck disorders. The examiner is also requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any diagnosed right shoulder disorder had its onset in service. The examiner should then consider whether the claimed left shoulder and neck disorders are at least as likely as not secondary to or aggravated by any his right shoulder disorder. The examiner should offer a rationale for any opinion provided. If the examiner is unable to provide an opinion, then he or she should state so and why the examiner is unable to provide an opinion. 11. Thereafter, the RO/AMC should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO/AMC should then readjudicate the claims on appeal. If any of the benefit sought remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2010). ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs