Citation Nr: 1301918 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-34 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left shoulder disability, and if so, whether service connection should be granted. 2. Entitlement to a compensable rating for residuals of a shrapnel wound of the right shoulder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from September 1966 to August 1992. This matter comes before the Board of Veterans Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge at the RO in March 2012. A transcript of his hearing has been associated with the record. The Board notes that there is a Virtual VA e-file for this Veteran. This e-file was reviewed for relevant information; however, a review of the e-file revealed that it contained duplicative information that is already in the file or evidence that is not pertinent to the current claims. The issues of entitlement to service connection for a left shoulder disability and an increased rating for residuals of a shrapnel fragment wound to the right shoulder are 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 an August 1994 rating decision, the RO denied service connection for tendonitis of the left shoulder; the Veteran did not appeal. 2. The evidence received since the August 1994 rating decision is not cumulative or redundant of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left shoulder disability. CONCLUSION OF LAW 1. The August 1994 rating decision that denied service connection for tendonitis of the left shoulder is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Because the Board has determined that the evidence submitted is sufficient to reopen the claim of entitlement to service connection for a left shoulder disability, no further discussion of the VCAA is necessary at this time. Analysis Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). 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). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). The RO denied service connection for left shoulder tendonitis in August 1994. It noted that the Veteran's left shoulder was normal during his retirement examination and was also normal on VA examination of June 1994. The evidence of record at the time of the August 1994 rating decision included the Veteran's service treatment records. They show that the Veteran complained of pain in his shoulders in March 1978. In July 1987 the Veteran complained of left shoulder pain; trapezius tenderness was assessed. Also of record was the report of a June 1994 VA general medical examination. No observation or diagnosis referable to the left shoulder is noted. Since the August 1994 rating decision, evidence added to the record includes evidence of a left shoulder disability. VA treatment records dated in January 2009 show X-ray evidence of glenohumeral spurring and joint space narrowing; the radiologist's impression was degenerative changes of the left shoulder. VA treatment records also show that the Veteran underwent hemiarthroplasty of the left shoulder in September 2009. As noted, the RO denied the Veteran's claim in August 1994 on the basis that there was no evidence of a disability. Since then, VA treatment records show a disability of the Veteran's left shoulder. As such, the Board finds that a defect existing at the time of the August 1994 rating decision has been cured, and the claim may be reopened. ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a left shoulder disability is granted. REMAND The Veteran maintains that he sustained an injury to his left shoulder in service, and that his current left shoulder disability is related to that injury. Specifically, the Veteran has testified that while training in Germany, he jumped from a turret hatch and landed on his left shoulder. He stated that he was treated for his shoulder. He noted that he sustained subsequent injuries to his left shoulder, and indicated that he was left hand dominant. The record contains a September 2006 lay statement from a former service colleague of the Veteran. The author described an incident in 1972 during which the platoon was training on a new piece of equipment, and a gun jammed, breaking the end off of a high explosive round. He noted that standard operating procedure was to evacuate and get a safe distance from the gun; he indicated that in the process of leaving the vehicle, the Veteran hit his shoulder on the machine gun mount. He stated that the Veteran was treated by the company medic and returned to work. He related that he and the Veteran were stationed together many times subsequently, and that the Veteran would comment on how his shoulder never got better and continued to cause him pain. The Board notes that a VA examination was conducted in July 2010. The examiner provided a diagnosis of left shoulder severe degenerative arthritis status post left shoulder hemiarthroplasty. He concluded that he could not provide an opinion regarding whether the current left shoulder disability was related to injuries in service without resort to speculation. He noted that service treatment records did not reveal any specific injury leading directly to shoulder joint arthritis. He also discussed various possibilities, to include that the arthritis was due to normal wear and tear, and noted that it might have been exacerbated by the Veteran's service time. He again stated that he could not determine such without resort to mere speculation. The Board notes that in Jones v. Shinseki, 23 Vet.App. 382 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that an examiner must explain the basis for his conclusion that an etiology opinion would be speculative. In that case, the Court had held that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather than an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Id. at 389-90. Here, while the examiner pointed out various possibilities, he ultimately concluded that he could not provide an etiology opinion without resorting to speculation. He did not explain whether there might be other information that might have a bearing on the opinion requested. Moreover, the extent to which the examiner considered the Veteran's statements and the lay statement by his colleague is unclear. Thus, the examination report is inadequate. The Board observes that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, a new examination should be undertaken. Regarding his service-connected right shoulder shrapnel fragment wound, the Board notes that a VA examination was most recently conducted in October 2008. A written statement by the Veteran dated in September 2009 indicates that he continued to have great pain and discomfort and that he could not move his right shoulder in certain positions. He also stated that the disability pricked and caused irritation. At his March 2012 hearing the Veteran acknowledged that his range of motion of the right shoulder was good, but indicated that he did have pain in certain positions. He also reported that he had itching and stinging. The Board observes that the evaluation of the Veteran's shrapnel fragment wound has focused mainly on whether there is limitation of motion of the joint; however, the evidence also suggests that there is neurological or muscle injury. As the medical evidence does not necessarily address the presence of neurological or muscle disability as the result of this shrapnel fragment wound, the Board has determined that additional examination is necessary. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) to determine the etiology of his left shoulder disability and the current severity of his right shoulder shrapnel fragment wound residuals. The claims folder should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the examination report. Left Shoulder Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all currently present disability of the left shoulder. The examiner should then provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such disability is related to any disease or injury in service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Right Shoulder Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all current disability of the right shoulder. In so doing, the examiner should indicate whether there is injury to any muscle group, and if so, which group or groups. With respect to any muscle group injury caused by the shrapnel fragment wound, the examiner should indicate whether such is slight, moderate, moderately severe, or severe. The examiner should also indicate whether there is any neurological impairment resulting from the Veteran's in-service shrapnel fragment wound to the right shoulder. Any identified neurological impairment should be characterized as mild, moderate or severe incomplete paralysis. The examiner should also describe in detail the presence or absence and the extent of any functional loss due to the Veteran's right shoulder disability. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. The examiner's report should include a description of the above factors that pertain to functional loss due to the right shoulder disability that develops on repetitive use or during flare-up. Based on current examination of the Veteran as well as review of the evidence of record to include post service treatment reports and prior physical examinations of the Veteran, the examiner must express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the right shoulder. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. If flare-ups are not observed during the examination, the examiner should refer to earlier medical records and to the Veteran's lay statements to determine the severity of his flare-ups, and portray additional lost range of motion during such flare-ups. A discussion of the reasons behind any opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which 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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs