Citation Nr: 1307744 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-23 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a left shoulder disability due to medical care at the Boston Department of Veterans Affairs Medical Center (VAMC) in July 2006. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for neck, back, right shoulder, and toe disabilities due to medical care at the Boston VAMC in May 2010. 3. Whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from August 1955 to August 1959. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. A February 2008 rating decision denied compensation pursuant to 38 U.S.C. § 1151 for a left shoulder disability due to medical care at the Boston VAMC in July 2006 and declined to reopen the Veteran's claim for service connection for a left shoulder disability on the basis that new and material evidence had not been received. An October 2011 rating decision denied compensation pursuant to 38 U.S.C. § 1151 for neck, back, right shoulder, and toe disabilities due to medical care at the Boston VAMC in May 2010. Although the Veteran did not submit a written notice of disagreement as to this denial of benefits, which are distinct from the claim adjudicated in the February 2008 rating decision, the Board finds that statements made by the Veteran and his representative during the August 2012 hearing constitute a valid notice of disagreement. In August 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a neck, back, right shoulder, and toe disability due to medical care at the Boston VA Medical Center in May 2010 is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran is not shown to have additional left shoulder disability that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospitalization or medical or surgical treatment at the Boston VAMC in July 2006, or that the proximate cause of any additional left shoulder disability was an event which was not reasonably foreseeable. 2. A June 1980 rating decision denied service connection for a left shoulder disability. The Veteran did not appeal that decision and the June 1980 decision is final. 3. The additional evidence presented since the June 1980 rating decision is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The requirements for compensation under 38 U.S.C.A. § 1151 for an additional left shoulder disability claimed to be caused by hospitalization, or medical or surgical treatment provided by the VA at the Boston VAMC in July 2006 are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2012). 2. The RO's June 1980 decision denying the claim for service connection for a left shoulder disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 3. As new and material evidence has not been received, the criteria for reopening the claim for service connection for a left shoulder disability have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Here, the RO sent correspondence in an October 2007 letter, a February 2008 rating decision, and a statement of the case in June 2009 that provided notice to the Veteran of the information and evidence necessary to substantiate a claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a left shoulder disability. These documents also discussed specific evidence, the particular legal requirements applicable to the Veteran's new and material evidence and service connection claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. The October 2007 letter, February 2008 rating action, and the June 2009 statement of the case informed the Veteran of the standard for new and material evidence and notified him of the reasons and bases for the prior denial of his claim, specifically because there was no evidence that the Veteran had a left shoulder disability attributed to his active service. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to reopen his previously denied claim for service connection. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Accordingly, the Board finds that any notice error with respect the Veteran's petition to reopen his claim or his claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a left shoulder disability is harmless and does not preclude appellate consideration at this time. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Moreover, the Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in connection with this appeal, which occurred in the June 2009 statement of the case. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the 38 U.S.C.A. § 1151 claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Benefits Pursuant to 38 U.S.C.A. § 1151 for a Left Shoulder Disability When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). A showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault is necessary for claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997. 38 U.S.C.A. § 1151 (West 2002). To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2012). VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2012). In addition to a showing of additional disability or death, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the Veteran and his representative, in compliance with 38 C.F.R. § 17.32 (2012). Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1) (2012). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151 for additional left shoulder disability which he claims resulted from being restrained after undergoing colon cancer surgery at the Boston VAMC in July 2006. Specifically, he claims that he was unaware he was tied to his bed and that after waking from surgery his left shoulder started hurting more. VA medical records show that in July 2006 the Veteran underwent a prescreening physical examination at the VAMC in Boston prior to undergoing colon cancer surgery. Primary medical history noted that the Veteran was status post a motor vehicle accident where he sustained a left shoulder dislocation and that he underwent left shoulder surgery in 1999. Prior to undergoing colon cancer surgery at the Boston VAMC, informed consent was obtained from the Veteran. The surgery was performed on July 14, 2006, and the Veteran was stable after surgery and his pain was controlled. The Veteran complained of abdominal pain and his Dilaudid was increased in dosage without relief and was also given Ativan without relief. On July 15, 2006, it was noted that the Veteran appeared confused at times and he was assessed with alteration in mental status and confusion. A July 16, 2006, VA nursing note shows that apparently around 1:30 a.m., the Veteran got out of bed and walked toward the SICU. A nurse from the PCU found the Veteran wandering in the hallway and returned him to the floor. The Veteran said that he was sleep walking, but the nurse noted that the Veteran did not appear to be groggy. The Veteran stated that he was also having "hallucinations". It was noted that the Veteran had been given Ambien on the evening shift. A July 17, 2006, VA inpatient psychiatry record shows that in the very early morning hours the Veteran started to become confused after being on Morphine PCA overnight. He started pulling out his IV tubing and ran into the bathroom. He was delirious. Attempts were made to return him to bed. Haloperidol was administered by IV. Although the Veteran calmed down and understood it was medically necessary for him to be compliant, he became very agitated and started pulling out his tubing again. Mental status examination revealed the Veteran was in apparent physical distress, agitated, angry, guarded, and uncooperative, with speech that was slurred, poor comprehension, and he was too agitated to comply or understand questions posed. He showed signs of paranoid behavior and was guarded. Additional medication were ordered and an order for leather restraints to be used for patient safety purposes for a maximum of 24 hours. Thereafter, a "code green" was called and the Veteran was placed in leather restraints because he demonstrated self destructive behaviors and was unable to be oriented to place and situation. IV access was established. The Veteran was verbally aggressive, thrashing in bed against restraints. A July 17, 2006, VA medical record shows that a physical examination was performed in the morning. He was assessed as POD 4 status post hemicolectomy and developed agitated delirium the previous night. A July 17, 2006, VA psychiatric report shows that at the time of afternoon rounds, the Veteran was in good behavioral control, was oriented, and able to engage in an interview. The Veteran stated that he was feeling better and did not completely remember the events of the previous night. At that time, he was not found to be a risk to himself or others. The psychiatrist noted that the morphine IV may have contributed to his confusion and agitation. The Veteran was discharged from the VA hospital on July 20, 2006. A July 25, 2006, post operative clinic note was negative for any complaints pertaining to the left shoulder. An August 2006 VA medical telephone follow-up phone call shows that the Veteran reported everything was going very well. The Veteran complained of stomach pains once in a while. An October 2006 VA medical record notes that the Veteran still had left shoulder pain. A November 2006 VA orthopedic consultation report shows that the Veteran had an injury to his left shoulder several years ago and underwent operative management by a local orthopedic surgeon where his acromioclavicular joint was reconstructed. Apparently, he had stretching out of the repair. He had been able to tolerate the various aches and pains around his shoulder until recently when he developed significant pain. He did not remember any specific trauma. The impression was a rotator cuff tear of the left shoulder. A November 2006 MRI performed at the Catholic Medical Center shows that the Veteran's clinical history was of left shoulder pain with increasing weakness with external rotation. Post-operative changes were noted. A rotator cuff tear was identified. In a May 2007 private medical record, R. B. N. , M.D. noted that the Veteran complained of left shoulder pain since an injury sustained while hospitalized for a partial colectomy for colon cancer at the VA hospital. The Veteran reported that he was placed on morphine and was sleepwalking and suffered an injury to his left shoulder. He had a previous left shoulder injury and was operated on, but was not really fixed. He was assessed with left shoulder rotator cuff tear and an AC joint injury, which was asymptomatic. A January 2008 VA joints examination report shows that the Veteran stated he had a torn AC joint from a car accident in the 1990s and the onset of his left shoulder pain was in the 1990s. He was admitted to the Boston VAMC in July 2006 for a colon cancer resection and he stated that he was walking in his sleep and found himself tied up on a gurney. He says that after his surgery, his left shoulder started hurting more. He was evaluated at the Manchester VAMC and by a private physician and was diagnosed with a rotator cuff tear and underwent surgery for that in May 2007. The examiner noted that after a review of the claims folder and medical information, the evidence showed that the Veteran's claimed a shoulder condition as early as 1980. There was surgery on his left shoulder following a motor vehicle accident in the 1990s which was well documented in the medical records and in the record when he was admitted for his colon cancer surgery in July 2006. He had been seen in the Manchester VA emergency room in 2005 complaining of left shoulder pain following some construction. At a VA orthopedic consultation in November 2006, the orthopedist stated that the Veteran did not recall any specific trauma. Thus, there was nothing to relate the rotator cuff tear temporally to the treatment at the Boston VAMC, nor was there any evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment or examination; or an event not reasonably foreseeable during that hospitalization. The Board finds that January 2008 VA examiner's opinion is supported by clinical findings and the physicians' review of the medical evidence, and the physician provided the reasons and bases for his opinion. Thus, the Board considers the January 2008 examination report and opinion to be of great probative value. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). VA adjudicators are not free to ignore or disregard the medical conclusions of VA medical professionals, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Notably, there is no competent evidence contrary to the January 2008 VA opinion of record, and the medical evidence of record supports that conclusion. The only evidence of record supporting the Veteran's claim is his own lay opinion, contained in his written statements and his hearing testimony. However, the Veteran has not been shown to possess the requisite medical training or credentials needed to provide a competent opinion as to diagnosis, medical causation, or whether appropriate care was provided. His lay opinion does not constitute competent medical evidence and lacks probative value. In any event, the Board finds that the opinion of a trained medical professional in the January 2008 VA opinion is more persuasive. While he is competent to report the history as he understands it, the history as reported in this case is not supported by other evidence on file. The Board notes that the Veteran was never restrained during his surgery. In fact, it was not until a couple days after surgery when the Veteran became agitated and a VA psychiatric consultation resulted in an order of restraints due to self destructive behaviors. There is no objective evidence on file that any injury to the Veteran's left shoulder was incurred during his July 2006 hospitalization at the Boston VAMC. There are, however, extensive, detailed medical records of his treatment, to include direct quotes as to how the Veteran was feeling. At no time did the Veteran have any complaints pertaining to his left shoulder during his July 2006 VA hospitalization. Furthermore, the Board places greater probative value on the VA examiner's opinion because it is based on a review of the record on appeal and an examination of the claimant. Black v. Brown, 10 Vet. App. 297 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Accordingly, the Board finds that the Veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for a left shoulder disability due to medical care at the Boston VAMC in July 2006, must be denied. The Board finds that the preponderance of the evidence is against the Veteran's claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence The Veteran's claim for service connection for a left shoulder disability was denied in a June 1980 RO rating decision. The Veteran did not appeal that decision and it is final. 38 U.S.C.A. § 7105(c) (West 2002). Accordingly, the Board must now consider the question of whether new and material evidence has been received to reopen that claim because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate it de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). At the time of the June 1980 rating decision, the RO denied the claim for service connection for a left shoulder disability on the basis that any left shoulder disability was not related to service. Service medical records were negative for evidence of any left shoulder disability, or chronic left shoulder condition and there was no evidence of arthritis within one year after discharge from service. At the time of the rating decision, the evidence also include an October 1978 private Dartmouth-Hitchcock Medical Center record noting that the Veteran complained of pain in the left shoulder as a result of catching himself when he slipped, falling down stairs. He was assessed with mild capsular injury to the left shoulder. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). In determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The evidence added to the claims file since the final June 1980 rating decision includes a September 1984 statement from the Veteran that in November 1956, he was involved in a motor vehicle accident and injured his back and shoulder. Subsequent VA and private medical records show that the Veteran was seen for the evaluation of complaints pertaining to the left shoulder. A February 2007 VA medical record shows that the Veteran was seen for complaints of back and shoulder pain that the Veteran reported developing during military service due to traumatic arthropathy. In May 2007, the Veteran was seen by a private physician with complaint of left shoulder pain since an injury he claimed while hospitalized for colon cancer at the VA hospital. He also had a previous left shoulder injury which was reported to be an AC separation, which was operated on, but reported as not really fixed. A May 2007 private medical record shows that the Veteran underwent left shoulder surgery for a rotator cuff tear. In September 2007, a letter from C.E.D was received indicating that in the fall of 1956, she was in service with the Veteran and they were driving in a car. The driver lost control, crossed the road, they flipped over three times and came to rest upside down. They had no broken bones, but suffered bumps and bruises. They did not seek medical attention as their primary goal was not to return to base to avoid being absent without leave. An April 2011 VA joints examination shows that the Veteran had complaints of left shoulder problems. However, he originally had problems with his shoulders in the 1990s and had an arthroscopy performed in 2007 for a cuff tear. The diagnosis was old chronic left shoulder cuff tear and left acromial clavicular separation. In a May 2011 VA spine examination, the Veteran reported left shoulder pain and the date of onset in 2000. In addition, the Veteran provided testimony at an August 2012 Board hearing in which he related his left shoulder disability to treatment received in a VA medical center. The regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156(a) (2012); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that the new evidence submitted by the Veteran does not relate to any unproven element of the previously denied claim. Moreover, the Board does not find that the new evidence provides a more complete picture of the circumstances surrounding the Veteran's service or to a chronic condition of a left shoulder condition. Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Veteran alleged an inservice injury at the time of the claim that was denied in June 1980. The claim was denied because the evidence did not show that any left shoulder disability was related to service, but was related to a post-service incident. No competent evidence has been submitted relating a current left shoulder disability to any incident of service. Therefore, the Board finds that the low threshold for reopening the claim has not been met. The Board acknowledges that the lay statements and VA and private medical records that have been added to the Veteran's claims folder constitute new evidence in the sense that they were not previously considered by VA decision makers. Nevertheless, the Board finds that newly submitted evidence is not material as it does not pertain to any unestablished fact necessary to substantiate the Veteran's previously denied claim. The evidence does not at least raise the possibility that, when considered with other evidence of record, and when presumed credible for the purpose of determining whether it is material, it would trigger a duty to provide a medical opinion for the issue of entitlement to service connection for a left shoulder disability. Shade v. Shinseki, 24 Vet. App. 110 (2010). There is no new evidence even suggesting that the Veteran has a left shoulder disability related to his active service, the element missing at the time of the final June 1980 RO decision. The Board notes that no VA treating provider or other physician has related the Veteran's left shoulder disability to his active service. Nor has the Veteran submitted any private medical opinion evidence that suggests such a nexus. The other new evidence does not contain competent evidence linking the Veteran's left shoulder disability to any other of his service. Therefore, the Board finds that evidence is not material because it does not create a reasonable possibility of substantiating the claim. The Board notes that a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case the Veteran is not competent to provide evidence as to more complex medical questions, such as to the diagnosis of a left shoulder disability that may be related to his service, especially in light of an intervening left shoulder injury as referenced by the Veteran in an October 1978 private Dartmouth-Hitchcock Medical Center record noting that he complained of pain in the left shoulder as a result of catching himself when he slipped, falling down stairs. The evidence fails to demonstrate the onset of chronic disability in service. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection for a left shoulder disability, is not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). ORDER Entitlement to VA compensation benefits pursuant to 38 U.S.C. § 1151 for a left shoulder disability due to medical care at the Boston VA Medical Center in July 2006 is denied. As new and material evidence has not been received, the request to reopen the claim for service connection for a left shoulder disability, is denied. REMAND With regard to the claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a neck, back, right shoulder, and toe disability, the Veteran provided testimony at the August 2012 videoconference hearing indicating that he was in disagreement with the October 2011 rating decision that denied this claim for compensation benefits pursuant to 38 U.S.C. § 1151 for neck, back, right shoulder, and toe disabilities due to May 2010 medical care at the Boston VAMC. The Veteran's testimony to constitute a timely notice of disagreement with that recent rating decision. Tomlin v. Brown, 5 Vet. App. 355 (1993) (statement made during a hearing, when later reduced to writing in a transcript, constitutes a written notice of disagreement within the meaning of 38 U.S.C.A. § 7105). However, it does not appear that the RO has yet issued a statement of the case addressing this issue. Therefore, the appropriate Board action is to remand that issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case which addresses the issue of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for neck, back, right shoulder, and toe disabilities due to medical care at a Boston VAMC in May 2010. Inform the Veteran of his appeal rights and that he must file a timely substantive appeal if he desires appellate review. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs