Citation Nr: 1303530 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 11-15 563 ) 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 claim of entitlement to service connection for a bilateral shoulder disability. 2. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Veteran represented by: Brooks S. McDaniel, Agent WITNESSES AT HEARING ON APPEAL The Veteran and L. Harrison, R.N. ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to March 1959. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied reopening a claim of service connection for a bilateral shoulder condition. The case was subsequently transferred to the Roanoke, Virginia RO, which certified the claims for appeal. In September 2011, the Veteran and a registered nurse testified by video conference before the undersigned at a Board hearing at the RO. A copy of the transcript is of record. The undersigned held the record open for 30 days to allow the Veteran and his representative to submit additional identified evidence. That period of time has expired and no additional evidence was submitted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a bilateral shoulder disability is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The claim of entitlement to service connection for a bilateral shoulder disability was denied in an unappealed April 1975 rating decision. 2. The evidence received since the April 1975 rating decision includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been presented to reopen a claim of entitlement to service connection for a bilateral shoulder disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims and 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all five elements of a claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the United States Court of Appeals for Veterans Claims (Court) held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). With regard to the Veteran's petition to reopen a claim of entitlement to service connection for a bilateral shoulder disability, the Board is herein reopening this claim, representing a grant of this benefit sought on appeal. Thus, any deficiency in VA's VCAA compliance with regard to this issue is deemed to be harmless error, and no further discussion of VA's responsibilities under the VCAA is necessary, with respect to this issue. II. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). 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 is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The RO denied reopening a claim of entitlement to service connection for a bilateral shoulder condition in a rating decision issued in April 1975. The Veteran was notified of the denial by a letter dated the same month. He did not appeal the decision and did not submit any pertinent evidence within one year of the decision. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per § 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The April 1975 rating decision is accordingly final. 38 C.F.R. § 20.302. The basis for the denial of reopening a claim of entitlement to service connection for a bilateral shoulder condition in April 1975 was that the Veteran had not submitted new and material evidence to warrant reopening the claim. The prior rating decision, dated in October 1972, noted that the Veteran's claim of entitlement to service connection for a shoulder condition was denied because no shoulder disease was found on VA examination in April 1959, and there was no diagnosis of shoulder disease in service. The Veteran's most recent VA examination in September 1972 had revealed right shoulder bursitis. In November 1980 and August 1984, the Veteran filed petitions to reopen his claim of entitlement to service connection for a bilateral shoulder disability. In November 1980 and September 1984, the RO sent to the Veteran a letter stating that it had received the Veteran's petitions to reopen his claim of entitlement to service connection for a shoulder condition, and informing the Veteran that he must provide additional information to establish his claim. The letters also provided examples of the types of evidence that would be helpful and supportive of the Veteran's claim. The Veteran, however, did not submit any evidence after either of these letters. As such, no rating decision was issued as to either claim, as the claims were considered to be abandoned. See 38 C.F.R. § 3.158(a) (2012) (where evidence requested in connection with a claim to reopen is not furnished within one year of the date of request, the claim will be considered abandoned). In February 2010, the Veteran again filed a petition to reopen his claim. The medical evidence added to the record since the April 1975 decision related to the Veteran's shoulders includes private records and a VA examination report of the spine, as well as the Veteran's testimony at a September 2011 hearing. In April 2010, the Veteran submitted X-rays, taken in March 2010, diagnosing arthritis of the bilateral shoulders. At his September 2011 Board hearing, the Veteran testified that his shoulder pain has progressively worsened since service. See Board Hearing Tr. at 5. In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Here, the Veteran asserts that he has had continuous symptoms of bilateral shoulder pain since service. The Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran currently has a diagnosis of arthritis of the bilateral shoulders. Because evidence of a bilateral shoulder disability was one of the elements that was not present in April 1975, this evidence is sufficient to reopen the previously-denied claim of a bilateral shoulder disability. The Veteran's assertion that he has suffered from continuous symptoms of bilateral shoulder pain since service is also sufficient to reopen the previously-denied claim of a bilateral shoulder disability, as a possible nexus between service and a current shoulder disability was also not present in April 1975. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is in order. Shade, 24 Vet. App. 110. ORDER New and material evidence having been received, the Veteran's petition to reopen a claim of entitlement to service connection for a bilateral shoulder disability is granted. REMAND The Veteran seeks service connection for the reopened claim of entitlement to service connection for a bilateral shoulder disability. Before the Board can adjudicate this claim on the merits, however, additional development is required. I. Private Treatment Records At his September 2011 hearing, the Veteran indicated that he had outstanding records from Dr. Blackwood and Dr. Bailey that he wished to submit. His representative also noted that he would be submitting MRI reports from the Reading Clinic. See Board Hearing Tr. at 6, 9. The Veteran's record was held open for 30 days for submission of these records, however, the records were never submitted, and therefore have not been associated with the claims file. On remand, the Veteran should be invited to either submit these records or adequately identify these records and provide a release for VA to obtain the records on his behalf. II. VA Examination VA is obliged to provide a VA medical examination and/or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran contends that service connection for a bilateral shoulder disability is warranted because this condition began during service and was exacerbated by doing chin-ups during service. The Board finds that a VA evaluation assessing the etiology of the Veteran's current diagnosis of bilateral arthritis of the shoulders is warranted in this case. In making this determination, the Board notes that the Veteran's post-service private records reveal that, in March 2010, the Veteran was diagnosed with arthritis of the shoulders. As such, because there is competent evidence showing that the Veteran has a current bilateral shoulder disability, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Veteran's service records indicate that he complained of back aches for six months. The Veteran asserts that these back aches also involved the shoulders. Although the Veteran denied a painful shoulder on a March 1959 Report of Medical History at separation, he did mark that he had swollen and painful joints. Immediately subsequent to separation, in March 1959, the Veteran complained of shoulder pain, which he asserted began during basic training. Accordingly, because the evidence of record indicates that the Veteran had shoulder pain during service, the second McLendon element has been satisfied. Further, turning to the third McLendon element, the Veteran testified at the Board hearing that he has suffered continuous symptoms of shoulder pain since service. See Board Hearing Tr. at 5. The Veteran is competent to testify regarding noticeable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Accordingly, the Board finds that there is evidence of record indicating that the Veteran's current bilateral shoulder disability may be associated with service, thereby satisfying the third McLendon element. Significantly, however, because there is insufficient medical evidence of record addressing whether the Veteran's current bilateral shoulder disability is related to his in-service bilateral shoulder pain, a VA evaluation and opinion addressing the etiology of his bilateral shoulder disability is necessary for the Board to make a decision on this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and ask him to either submit all available records from Dr. Bailey and Dr. Blackwood, as well as MRI reports from the Reading Clinic, or provide authorization for VA to obtain such records, as well as any other outstanding relevant private records. If the Veteran responds, contact each entity to obtain all adequately-identified medical records. Document all attempts to locate any such records, and follow procedures set forth in 38 C.F.R. § 3.159(e) (2012). 2. When the foregoing development is completed, schedule the Veteran for an evaluation to determine the nature and etiology of his bilateral shoulder disability. The claims file should be made available to and be reviewed by the examiner in conjunction with the evaluation. The examiner is asked to provide diagnoses of all current shoulder disabilities present since the February 2010 claim for service connection. With respect to each disability diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the disability is related to in-service bilateral shoulder pain. For purposes of this opinion, the examiner should consider the Veteran's assertions of in-service shoulder pain to be true. A report of the evaluation should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). ______________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs