Citation Nr: 1303728 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-15 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a left shoulder disorder. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for lumbosacral spine strain, to include as secondary to a service-connected left ankle disability. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for a right knee disorder, secondary to a service-connected left ankle disability. 4. Entitlement to service connection for a left shoulder disorder. 5. Entitlement to service connection for lumbosacral spine strain, to include secondary to a service-connected left ankle disability. 6. Entitlement to service connection for a right knee disorder, secondary to a service-connected left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted for the claims for service connection for left shoulder, lumbosacral spine strain, or right knee disorders. In November 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. At the November 2011 Travel Board hearing, the issues of entitlement to service connection for depression and gastritis, secondary to medication taken for a left shoulder disorder and service-connected left ankle disability was raised by the Veteran on the record. However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for a left shoulder disorder, lumbosacral spine strain, and a right knee disorder, secondary to a service-connected left ankle disability being remanded 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. Most recently, service connection continued to be denied for a left shoulder disorder, lumbosacral spine strain, and a right knee disorder by rating decision of July 2006. The Veteran did not timely appeal the decisions within one year of notice of the denial. 2. Evidence received subsequent to the July 2006 rating decision related to an unestablished fact and raises a reasonable possibility of substantiating the underlying claims of service connection for a left shoulder disorder, lumbosacral spine strain, and a right knee disorder. CONCLUSIONS OF LAW 1. The July 2006 RO decision which denied service connection for a left shoulder disorder, lumbosacral spine strain, and a right knee disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2012). 2. Evidence submitted subsequent to the July 2006 denial of service connection for a left shoulder disorder, lumbosacral spine strain, and a right knee disorder, is new and material. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. New and Material Evidence Final decisions may be reopened by submission of new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2012). When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett, 83 F.3d at 1383 ; Butler v. Brown, 9 Vet. App. 167, 171 (1996). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson, 265 F.3d at 1366. It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Id. at 1366; Barnett, 83 F.3d at 1380. In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). The Veteran's claims for service connection for a left shoulder disorder, lumbosacral spine strain, and a right knee disorder were most recently denied by a July 2006 rating decision. In that decision, the RO found that the evidence submitted in support of these claims did not relate to an unestablished fact necessary to substantiate the claims and did not raise a reasonable possibility of substantiating the claims. The Veteran did not appeal the July 2006 denial within the applicable one year period. Moreover, a review of the record failed to show receipt of evidence between July 2006 and July 2007 that would be considered "new and material". Buie v. Shinseki, 24 Vet. App. 242 , 242-52 (2010) (held that, if new and material evidence has been submitted within a year of the RO decision, 38 C.F.R. 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim). The July 2007 rating decision therefore is final. The Veteran filed in December 2007 to reopen the claims for service connection for his left shoulder disorder and lumbosacral spine strain. In March 2008, he filed to reopen the claim for a right knee disorder. A July 2008 rating decision continued to deny the claims. In this rating decision, the RO found that no new and material evidence had been submitted to reopen any of the claims. The evidence received since the July 2006 rating decision includes VA treatment records; statements in support of the Veteran's claims made by his mother and two family friends; an October 2009 MRI report of the Veteran's lumbar spine; a March 2011 VA treatment report and opinion; recorded hearing testimony provided by the Veteran in November 2011; and a March 2012 medical opinion from a VA examiner. The VA treatment records reflect primarily of treatment for the claimed conditions. Most of the treatment records have already been of record and were previously considered. Therefore, these treatment records are not new and material. An October 2009 MRI report was also submitted in connection with the claim. This MRI report showed disc bulging and facet arthropathy of the spine. This evidence is new, as it was not previously before decisionmakers. However, it is not material as it does not link the Veteran's lumbosacral spine strain to an event in service or secondarily to his service-connected left ankle disability. Although this MRI report is indicative of present disability of the lumbar spine, it does not relate to an unestablished fact that is necessary to substantiate the claim. Thus, this evidence is not new and material. The Veteran testified at a Travel Board hearing before the undersigned VLJ in November 2011. This hearing testimony was duplicative of statements the Veteran has previously made in connection with establishing service connection for a left shoulder disorder, lumbosacral spine strain, and right knee disorder. See Bostain v. West, 11 Vet.App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by the decisionmaker at that time of a prior final disallowance of the claim is not new evidence). As such, the testimony of the Veteran at the Travel Board hearing is not new and material. The statements made by the Veteran's family friends is not new and material evidence. The statements are new, as they have not been before decisionmaikers before. However, these statements are not material. These statements, which indicate what the Veteran told them regarding his disabilities, and are essentially repetitive of statements previously made by the Veteran, do not relate to an unestablished fact necessary to substantiate the claims. Therefore, these statements are not new and material evidence. The statement by the Veteran's mother, the VA treatment record with opinion, and the opinion submitted by a VA examiner, are all new and material. At the outset, none of this evidence has been before decisionmakers before. The statement of the Veteran's mother, who indicates that she is a nurse, speaks to the Veteran's hyperextension of the left shoulder in service, the treatment he received, and his lifting of weights when he claimed to have injured his back. Additionally, a March 2011 VA medical treatment record indicates that the Veteran was examined with records documenting ultrasound treatments to his left shoulder while on active duty. The examiner found this to more likely than not be the causative traumatic event leading to his present left shoulder complaints. Additionally, the examiner indicated that the Veteran's service-connected left ankle gives him an antalgic gait (which was evidenced by the asymmetrical wear and tear on his shoes), which was likely the main component leading to his right knee degenerative arthritis. Finally, a March 2012 VA opinion indicates, in pertinent part, that after a review of the Veteran's medical records and history the examiner opined that the Veteran's low back pain was more likely than not related to both his antalgic gait from his chronic left ankle pain, and his low back injury from the fall he sustained in active duty in July 1981. The statement of his mother, who is a nurse, and that of the two VA examiners in March 2011 and March 2012, are all new and material evidence. None of this evidence has been previously of record. All of the evidence relates to an unestablished fact. The evidence taken cumulatively suggests the possibility that his left shoulder disorder, lumbosacral strain, and right knee, is related to service or a service-connected disability. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasizes 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." In Shade v. Shinseki, 24 Vet.App. 110 (2010), it was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the veteran to provide medical nexus evidence to reopen his claim. The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. The Shade threshold has been met here and thereby triggers VA's duty to assist. Thus, there is sufficient evidence to warrant reopening of the claims for service connection for a left shoulder disorder, lumbosacral spine strain, and a right knee disorder. Having reopened the claims, the Board finds the claims require remand for further development. ORDER New and material evidence to reopen the claims for service connection for left shoulder disorder, lumbosacral spine strain, and right knee disorder having been received, the claims, to this extent, are granted. REMAND Further development is necessary in this case. Initially, the issues for service connection for a left shoulder disorder, lumbosacral spine strain, and right knee disorder have been reopened. These issues are now to be reviewed on a de novo basis. The Veteran claims service connection is warranted for a left shoulder disorder and lumbosacral spine strain based on service incurrence. He maintains that he injured his left shoulder while building a bridge and he received ultrasound treatment for the condition in service. He alleges that he injured his back in service while lifting weights and on another occasion, when he fell off of an obstacle course. He stated that he did not seek medical attention for either of those injuries. He also claims in the alternative, that his lumbosacral spine strain is due to his antalgic gait and caused or aggravated by his service-connected left ankle disability. Finally, he maintains that he did not injure his right knee in service, but that this disorder, too, is the result of or aggravated by his service-connected left ankle disability. Based on the evidence of record, the Board finds that VA examination should be provided to determine the etiology of the Veteran's left shoulder disorder, lumbosacral spine strain, and right knee disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. The Veteran should be afforded an appropriate VA orthopedic examination. The claims folder must be made available and reviewed by the examiner. All indicated studies should be performed. The examiner must provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has a left shoulder disorder and/or lumbosacral spine strain which had onset in service or is due to an event in service. In offering these assessments, the examiner must discuss the Veteran's statements regarding the onset and/or chronicity of the pertinent symptoms. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbosacral spine strain and/or right knee disorder were caused or aggravated by his service-connected left ankle disability and/or antalgic gait caused thereby. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the lumbosacral spine strain and/or right knee disorder (i.e., a baseline) before the onset of the aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. All findings and conclusions requested should be set forth in a legible report. Supporting rationale must be provided with each requested opinion. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of all of the evidence of record. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs