Citation Nr: 1306876 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-18 305A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from January 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. The issue of whether or not there was clear and unmistakable error in a prior decision of either the RO's or the Board's denying entitlement to service connection for a right shoulder disorder has been has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that claim, and it is referred to the AOJ for appropriate action. The AOJ should request further information from the Veteran and his representative as to their intentions regarding that claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. VA denied entitlement to service connection for a right shoulder disorder in an October 1991 Board decision and an April 2006 Regional Office rating decision. The Veteran did not appeal those determinations and they are now final. 2. The evidence received since the April 2006 rating decision was previously considered by agency decision makers, is cumulative and redundant of evidence already in the record, fails to address an unestablished fact and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection. CONCLUSIONS OF LAW 1. The October 1991 Board decision and April 2006 Regional Office rating decision, which denied entitlement to service connection for a right shoulder disorder, are final. 38 U.S.C.A. § 7104, 7105 (West 2002); 38 C.F.R. § 3.104, 20.1100 (2012). 2. The additional evidence received since the April 2006 rating decision is not new and material and the claim of entitlement to service connection for a right shoulder disorder is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is attempting to reopen a previously denied claim of entitlement to service connection for a right shoulder disorder. The Veteran first claimed entitlement to service connection for a right shoulder disorder in July 1990. The RO denied entitlement to service connection for that condition in a December 1990 rating decision, finding that the condition existed prior to service and that it was not aggravated beyond its normal progression during service. The Veteran submitted a Notice of Disagreement (NOD) in February 1991. The RO issued a Statement of the Case (SOC) in March 1991 and the Veteran filed a Substantive Appeal (VA Form 9) later that month. The Veteran's claim first came before the Board in October 1991, at which time it was denied on findings that the Veteran's right shoulder disorder first manifested itself prior to entrance to service and that the underlying pathology did not increase in severity during the Veteran's period of service. The Veteran was notified of that decision and did not appeal. Accordingly, that decision in final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In July 2005 the Veteran filed to reopen his claim of entitlement to service connection for a right shoulder disorder. That claim was denied in an April 2006 rating decision, wherein the RO determined that new and material evidence had not been submitted. The Veteran did not appeal that determination; accordingly, it too is now final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In January 2009 the Veteran filed another claim asserting entitlement to service connection for a right shoulder disorder. The RO denied that claim in May 2009, once again finding that new and material evidence had not been submitted. The Veteran submitted a Notice of Disagreement (NOD) in January 2010. The RO issued a Statement of the Case (SOC) in March 2010 and the Veteran filed a Substantive Appeal (VA Form 9) in May 2010. Accordingly, the Veteran's claim is now before the Board for appellate review. Regardless of how the RO ruled on the question of reopening, the Board, as the final fact finder within VA, initially must determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). When a Veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is new and material. New evidence means evidence not previously submitted to agency decision makers. 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 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) (2012). Material evidence may contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it does not eventually convince VA to alter the decision. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, then the claim must be reopened and the VA may then proceed to the merits of the claim on the basis of all the evidence of record. When determining whether a claim should be reopened, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1990). If VA does not consider new and material evidence submitted within the one-year appeal period pursuant to 38 C.F.R. § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461 (2009). When statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement, but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Buie v. Shinseki, 24 Vet. App. 242 (2011). Similarly, when VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, the claim will be reconsidered notwithstanding the provisions of 38 C.F.R. § 3.156(a). 38 C.F.R. § 3.156(c) (2012). The evidence received since the April 2006 rating decision consists of VA treatment records and both written and oral statements from the Veteran. On review, the Board finds that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for a right shoulder disorder. The evidence submitted is new, in that it was not of record at the time of the April 2006 rating decision. However, it is not material because it does not relate to an unestablished fact necessary to substantiate the Veteran's claim, and does not raise a reasonable possibility of substantiating the claim. The Board notes that VA treatment records show treatment for a right shoulder disorder. Specifically, radiographic imagery from June 2006 shows that there was a threaded screw overlying the right shoulder that appeared broken. The Veteran also submitted copies of his service treatment records. In a May 2009 written statement the Veteran stated that his service treatment records should contain information verifying his medical condition and the treatment for that condition. He stated that he repeatedly requested medical treatment for his shoulder during service and that he now has constant pain in his right shoulder. He argued that the Navy should have either helped him or not allowed him to join up. In a January 2010 written statement the Veteran again asserted that his current right shoulder disorder is the result of non-treatment in service. He made similar assertions in a written statement from March 2010. In his May 2010 Substantive Appeal (VA Form 9) the Veteran reiterated his belief that his preexisting right shoulder injury was aggravated during service and that he repeatedly requested treatment in service. In April 2011 the Veteran testified at a hearing before the undersigned Veterans Law Judge. During that hearing the Veteran stated that his shoulder is not as limiting now as it was prior to his entrance into service. He stated that he reinjured his right shoulder in service and was inadequately treated. He stated that military physicians wanted to operate on his right shoulder prior to his release from active service, but that he declined that treatment. Treatment records submitted indicate that the Veteran has been treated for a current right shoulder disorder, but do not contain any information showing that the Veteran's right shoulder disorder did not preexist service or was not aggravated therein. Similarly, the Veteran's service treatment records were considered at the time of the prior final decision. Finally, the Board finds that the Veteran's written and oral statements are redundant and duplicative of his assertions considered at the time of April 2006 rating decision. In this regard, the Board notes that the Veteran testified before a hearing officer in July 1991 and stated that he was treated for his right shoulder on numerous occasions during service and that it worsened as a result as a result of service. Cumulative evidence does not meet the standard of new and material evidence. 38 C.F.R. § 3.156. Accordingly, the Board finds that the new evidence submitted is not material. In sum, the Board finds that the evidence pertaining to the claim for a right shoulder disorder presented subsequent to the April 2006 rating decision is not new and material, and provides no basis to reopen that claim. Because the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the preponderance of the evidence is against a finding that the new evidence is material and the claim remains denied. Annoni v. Brown, 5 Vet. App. 463 (1993). Duty to Assist The Board is required to ensure that the VA's duty to notify and duty to assist obligations have been satisfied. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was met by letters from the RO to the Veteran dated in March 2009 and February 2010. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO also provided assistance to the Veteran as required. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In addition, the Veteran and his representative have not made VA aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. Therefore, the Board finds that the RO has satisfied the duty to notify and the duty to assist and finds no prejudice in the adjudication of the claim on appeal. ORDER New and material evidence not having been submitted, the claim of entitlement to service connection for a right shoulder disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs