Citation Nr: 1310596 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-40 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether new and material evidence has been received to reopen the issue of entitlement to service connection for a left shoulder disability. ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The 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. An April 1996 rating decision declined to reopen the Veteran's claim for service connection for a left shoulder disability; the Veteran did not appeal this denial, or submit new and material evidence within one year of the notice letter. 2. Evidence submitted since the April 1996 rating decision includes a duplicate copy of the Veteran's May 1952 service entrance examination. CONCLUSIONS OF LAW 1. The April 1996 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for a left shoulder disability is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act VA has met all statutory and regulatory notice and duty to assist provisions. 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 (2012). A June 2009 letter satisfied the duty to notify provisions, to include notifying the Veteran of information pertinent to the establishment of an effective date and of the disability rating, and the information pertinent to claims to reopen based on the submission of new and material evidence, to include the basis of the prior final denial and specific evidence required to reopen his claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see Kent v. Nicholson, 20 Vet. App 1 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration, only those based on his age, as noted in a February 1996 record. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). Although a VA examination was not conducted with respect to the Veteran's claim to reopen the issue of entitlement to service connection for a left shoulder disability, VA is not required to obtain an examination for a claim to reopen a finally decided decision. See 38 C.F.R. § 3.159(c). Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). New evidence means existing evidence not previously submitted to VA. Material evidence means existing 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a left shoulder disability was originally denied by the RO in April 1953. The basis of the prior final denial was the RO's finding that the Veteran's left shoulder disability preexisted service and was not aggravated by service. The evidence of record at the time of this denial included service treatment records, as well as testimony provided before a military Physical Evaluation Board, wherein the Veteran testified that he had suffered injury to the left shoulder in 1948, prior to service. He confirmed that he suffered approximately 10 dislocations of the shoulder prior to service, and suffered one during service. In February 1996, the Veteran again requested service connection for a left shoulder disability. The RO declined to reopen the Veteran's claim in an April 1996 rating decision. Within the one-year period following notice to the Veteran of that decision, he did not file a notice of disagreement or submit new and material evidence. Thus, that rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). Evidence received since the April 1996 decision includes a partially-obscured copy of the Veteran's May 1952 service entrance examination on Standard Form 88 (SF88). The information obscured in the Veteran's copy is, however, clear from the copy previously of record. The original copy in the Veteran's service treatment records notes the Veteran's allegation of recurrent dislocation of the left shoulder, occurring 10 times since 1948, which had been treated by a private physician, and resulted in no atrophy, instability, limited motion, or evidence of bone or joint disease on X-ray. As the document submitted by the Veteran is a duplicate of evidence already considered in the prior denials, it is not new. The Veteran argues that the partially obscured copy of the SF88 he submitted shows he did not have a left shoulder disability at entrance and was fit for duty, and that the SF88 referred to by the RO was prepared for his separation. However, VA's copy of the May 19, 1952 SF88, identified as a pre-induction examination, reflects the Veteran's report of recurrent dislocation of the left shoulder, occurring 10 times since 1948. While credibility of evidence submitted for new and material evidence purposes is generally presumed, the Justus credibility rule is not boundless or blind; if the newly submitted evidence is inherently false or untrue, the Justus credibility rule simply would not apply. Duran v. Brown, 7 Vet. App. 216, 220-221 (1994). "Justus does not require the Secretary to consider the patently incredible to be credible." Id. Here, the Veteran's assertion that his left shoulder disability did not exist at entrance because the March 1952 SF88 prepared for induction is essentially devoid of information to that effect, is inherently incredible in light of the fact that the original SF88 contained in his service treatment records, in reality, provides that specific information. In other words, the Veteran's assertion that what is clearly shown on the original entrance examination is actually not there and that the document is not his entrance examination, is patently incredible, and cannot be deemed to be new and material evidence. For the reasons discussed above, neither the partially obscured copy of the service entrance examination nor the Veteran's argument as to what such document shows constitute new and material evidence. Such evidence is either not new or not material, and does not raise a reasonable possibility of substantiating the Veteran's claim. Thus, the appeal to reopen the issue of entitlement to service connection for a left shoulder disability must be denied. As new and material evidence to reopen a finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted, the appeal to reopen the Veteran's claim for entitlement to service connection for a left shoulder disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs