Citation Nr: 1306361 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-29 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: David L. Huffman, Esq. ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from December 1957 to April 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The issue of entitlement to a total rating based on individual unemployability has been raised by the Veteran's attorney, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The issue of entitlement to service connection for a right shoulder disability is remanded to the RO. FINDINGS OF FACT 1. Service connection for a right shoulder disability was denied in an unappealed rating decision in January 2004. 2. Additional evidence received subsequent to the rating decision in 2004 includes VA medical records, private medical records, and lay statements. 3. The additional evidence with regard to the Veteran's claim to reopen the issue of entitlement to service connection for a right shoulder disorder, was not previously before VA, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence submitted to reopen the claim of entitlement to service connection for a shoulder disability is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 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). This is so because the Board is taking action favorable to the Veteran by reopening the claim for service connection for a shoulder disability. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a). "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." Id. 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. Id. Here, the RO denied service connection for a shoulder disability in a January 2004 rating decision. The Veteran submitted a timely notice of disagreement and the RO issued a statement of the case. While the Veteran submitted new evidence within one year of the January 2004 rating decision, the evidence was not pertinent to his shoulder claim. He did not submit a timely substantive appeal. The next communication regarding a shoulder disability was received in July 2009. Therefore, the January 2004 rating decision is final. 38 U.S.C.A. § 7105. In January 2004, the RO denied entitlement to service connection for a shoulder disability on the bases that the service treatment records did not show complaints or findings of a shoulder disorder during service, the post-service evidence did not show a shoulder disorder from service discharge to the claim, and the evidence did not show a nexus between any current shoulder disorder and the Veteran's military service. Since the January 2004 rating decision, the Veteran has submitted VA treatment records, private treatment records, and personal statements. VA treatment records show a diagnosis of rotator cuff syndrome and in an August 2011 statement, a VA physician's assistant opined that it was "at least as likely as not" that the chronic right shoulder pain was directly related to his military service. A letter from a private chiropractor, received in June 2011, also indicates that it was "at least as likely as not" that the chronic right shoulder pain was directly related to his military service. The Board finds that the opinions are new and material as they were not previously before VA, they relate to an unestablished fact necessary to substantiate the claim, they are neither cumulative nor redundant of the evidence previously of record, and they raise a reasonable possibility of substantiating the claim. Accordingly, this evidence is sufficient to reopen the claim for entitlement to service connection for a shoulder disability. See Shade v. Shinseki, 24 Vet. App. 110 (2010). ORDER New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disorder is reopened, and to this extent only, the appeal is granted. REMAND The Veteran submitted a statement from his chiropractor, S.K.S., which indicates that he had treated the Veteran's chronic right shoulder disorder for more than five years. Treatment records from S.K.S. have not been associated with the claims file. Therefore, on remand, the RO must ask the Veteran to either provide the pertinent treatment records from S.K.S. or to provide an Authorization and Release Form allowing VA to obtain treatment records. Moreover, S.K.S. did not provide a rationale for his opinion that the Veteran's right shoulder was "at least as likely as not" related to his military service. S.K.S. must be requested to provide the bases for his opinion. The Veteran submitted a statement from a VA physician's assistant, which indicates that he had treated the Veteran's chronic right shoulder disorder for more than five years. Although the RO electronically reviewed the treatment records from the VA Medical Center (VAMC) where physician's assistant was employed, these records have not been associated with the evidence of record. Therefore, on remand, the RO must obtain the pertinent VAMC treatment records from 2006 to 2011 and associate them with the evidence of record. Moreover, the physician's assistant did not provide a rationale for his opinion that the Veteran's right shoulder was "at least as likely as not" related to his military service. The physician's assistant must be requested to provide the bases for his opinion. Moreover, the evidence of record suggests that the Veteran presented testimony before the RO at a formal hearing on June 16, 2011. A transcript of this hearing is not of record, and should be associated with the evidence of record. Accordingly, the case is remanded for the following action: 1. A transcript of the Veteran's testimony before the RO at a formal hearing on June 16, 2011, must be associated with the evidence of record. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any VA or non-VA pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. If, after making reasonable efforts to obtain named records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 3. The RO must request that S.K.S., D.C. provide the medical bases, supporting authority, and rationale for his opinion that the Veteran's current chronic right shoulder pain is related to his military service. Additionally, all pertinent examination and treatment records regarding the treatment S.K.S. provided the Veteran, must be requested. If, after making reasonable efforts, the RO is unable to secure the records, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 4. The RO must request that the VA physician's assistant provide the medical bases, supporting authority, and rationale for his opinion that the Veteran's current chronic right shoulder pain is related to his military service. Additionally, all pertinent examination and treatment records that the physician's assistant provided the Veteran at the VAMC, must be requested. If, after making reasonable efforts, the RO is unable to secure the records, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs