Citation Nr: 1309935 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-16 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a right shoulder disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from March 1944 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for a right shoulder disability. Irrespective of the RO's action, the Board must decide whether new and material evidence sufficient to reopen the claim of entitlement to service connection for a right shoulder disability has been received prior to considering the merits of that underlying issue. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has characterized the issue on appeal as noted on the title page in light of Barnett. In February 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. Please note 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). FINDINGS OF FACT 1. In a January 1989 rating decision, the RO denied entitlement to service connection for a right shoulder disability; the Veteran did not file a notice of disagreement (NOD). 2. Additional evidence received since the RO's January 1989 decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in the Veteran's favor, chronic right shoulder bursitis had its onset in service. CONCLUSIONS OF LAW 1. The January 1989 RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). 2. New and material evidence has been received since the RO's January 1989 decision, and the claim of service connection for a right shoulder disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Chronic right shoulder bursitis was incurred during wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issue of whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a right shoulder disability, as well as the underlying de novo aspect of this appeal, no further discussion of these VCAA requirements is required with respect to this matter. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. New and Material Evidence In July 1988, the Veteran filed a claim for service connection for a right shoulder disability. In a January 1989 rating decision, the RO denied service connection for a right shoulder disability, finding that there was no nexus to service. The rating decision was issued to the Veteran in February 1989. The Veteran did not file an NOD. In May 2008, the Veteran applied to have his claim reopened. A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.129, 19.192, 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). As previously discussed herein, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "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 prior 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA need not accept the patently incredible for purposes of reopening. Duran v. Brown, 7 Vet. App. 216 (1994). Here, relevant evidence of record at the time of the January 1989 rating decision included service treatment records (STRs). Those records establish that in January 1944, while serving onboard the USS Hansford, the Veteran injured his right shoulder in a landing craft vehicle personnel (LCVP) accident. A November 1988 VA examination report contained a diagnosis of right shoulder bursitis, but no opinion with respect to etiology. A September 1988 correspondence from Dr. L.Z. stated that he first treated the Veteran for right shoulder pain in 1968. At that time, the Veteran reported that his right shoulder had been hurting, on and off, ever since the in-service injury. In April 1991, the Veteran submitted to a VA examination in connection with a claim for nonservice-connected pension. He gave a history of right shoulder pain "for several years." The examiner diagnosed right shoulder bursitis. At the time of the denial of the claim for service connection for a right shoulder disability in January 1989, the claims folder contained no competent evidence of a nexus to service. Thus, the RO, in January 1989, denied the claim of service connection for this disability. The Veteran did not appeal the RO's decision, and the denial became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). In reaching the conclusion that the January 1989 decision is final, the Board is cognizant of Bond v. Shinseki, 659 F.3d 1362 (2011), which held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Here, new evidence received after the January 1989 rating decision but prior to the current 2008 claim includes a VA examination report that contains a diagnosis of right shoulder bursitis. The Board finds that this evidence was cumulative or duplicative of evidence previously considered. Thus, the January 1989 RO decision is final. Relevant evidence received since the January 1989 denial includes a February 2012 Disability Benefits Questionnaire (DBQ), which contains a diagnosis of right shoulder arthritis that was confirmed on X-ray testing. There were no findings of right shoulder arthritis at the time of the January 1989 rating action. The VA examination report constitutes new and material evidence as it contains a diagnosis of arthritis. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, the claim of service connection for a right shoulder disability is reopened. 38 U.S.C.A. § 5108. III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he injured his right shoulder while serving onboard the USS Hansford. Specifically, he maintains that an LCVP he was in broke loose and fell approximately 30 feet into the water. He asserts that he has, since that time, experienced right shoulder pain. STRs reveal that the Veteran was injured in an LCVP accident on January 1, 1945. He sustained injuries to his right shoulder, right ankle, lower lip, and nose. He was released to light duty three days later. A February 1946 separation examination contains a normal clinical evaluation of the extremities. However, the clinician noted that the Veteran had injured his right shoulder in 1945. In a September 1988 correspondence, Dr. L.Z. indicated that he first treated the Veteran for right shoulder pain in 1968. At that time, the Veteran stated that he had injured the shoulder during service and that it had continued to hurt, on and off, since that time. The Veteran submitted to a December 1988 VA examination with respect to the initial service connection claim. He reportedly "did not has [sic] much complaint" with respect to the right shoulder until 1964. Between 1964 and 1974, he had two or three cortisone injections. The first one alleviated his shoulder pain. He had treated the pain with medication since 1974. The Veteran indicated that he worked as a truck driver after service. The examiner diagnosed bursitis, right shoulder in 1945, by history. As discussed above, an April 1991 VA examination report contains a diagnosis of right shoulder bursitis. VA treatment records dated from January 2005 to March 2008 show that the Veteran complained of right shoulder pain in March 2005 while being treated for a left shoulder injury. The Veteran submitted to the most recent VA examination in February 2012. The DBQ shows that he reportedly developed right shoulder pain after injuring the right shoulder during service, and that he had had right shoulder complaints since that time. His employment history included working as a truck driver. He had not worked in 20 years because his right shoulder condition prevented him from steering the wheel on a truck. The examiner diagnosed mild degenerative changes of the AC joint by X-ray. He opined that it "was less likely than not (less than 50 percent probability)" that the currently diagnosed right shoulder disability was incurred in or caused by the in-service injury. He reasoned that the disability was the result of working as a truck driver for more than 20 years. He also concluded that the 2005 left shoulder injury had aggravated the right shoulder condition. During the February 2013 hearing, the Veteran testified that he "always had problems" with his right shoulder after the in-service accident, "but not like the later years." Hearing Transcript at 4. He explained that the right shoulder pain progressed as time went on. He first sought treatment for right shoulder pain from a private doctor in the 1950's, and he continued to seek treatment from private providers until he started going to VA in the 1980's or 1990's. The Veteran indicated that those doctors had passed away. He stated that his post-service employment included working on a farm for a couple of years and driving a cement truck for almost 20 years. He denied any post-service right shoulder injury. Based on a review of the evidence, the Board finds that service connection for a right shoulder bursitis is warranted. As this discussion illustrates, in-service injury to the right shoulder is established. In addition, right shoulder bursitis was diagnosed. The Veteran has reported that he has experienced constant right shoulder pain since service. The Veteran is competent to report his symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board also finds that the evidence supports a finding of a nexus between the Veteran's in-service right shoulder injury and his right shoulder bursitis. The Board finds the Veteran credible regarding his reports of right shoulder pain beginning in service and continuing since that time. There is nothing in the record to indicate that the Veteran's assertions are not credible. In reaching this conclusion, the Board acknowledges the negative nexus opinion from the February 2012 VA examiner. Right shoulder arthritis was diagnosed and it was concluded that it was not related to service. The Board finds support for this conclusion; there were no findings of arthritis in service or on x-ray examination in 1988 and 1991. Right shoulder arthritis was not manifested in service or within the first post service year and may not be presumed to have been incurred in service. See 38 C.F.R. §§ 3.307, 3.309 (2012). However, the bursitis was diagnosed earlier and there is supporting evidence that right shoulder pain has persisted since service. The Veteran has provided a competent and credible report of the onset of his right shoulder pain during service and a continuity of symptomatology since that time. The Board observes that, in some instances, lay evidence may be sufficient to establish a nexus. See Walker, supra; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus). In this case, in-service injury to the Veteran's right shoulder is established. He has provided a credible report that his right shoulder pain continued after service. The Board concludes that the Veteran's reports are sufficient to establish a positive nexus. Accordingly, in considering the in-service right shoulder injury, the competent and credible lay statements of record, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has a right shoulder bursitis that was incurred in service. The evidence is in favor of the grant of service connection for a right shoulder disability. Service connection for a right shoulder disability is, therefore, granted. See 38 U.S.C.A § 5107 (West 2002). ORDER Service connection for a right shoulder bursitis is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs