Citation Nr: 1311101 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-39 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left upper extremity disorder. 2. Entitlement to benefits under 38 U.S.C.A. § 1151 for a left shoulder disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his son ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION 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). The Veteran had active service in the United States Army from July 1955 to July 1957. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2012, a Board hearing was held at the RO. A transcript of the hearing has been associated with the claims file and has been reviewed. The issue of entitlement to benefits under 38 U.S.C.A. § 1151 for a left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and the pertinent records therein which are not also in the paper claims file were reviewed by the AMC/RO, as noted in the January 2013 Supplemental Statement of the Case (SSOC). Thus, there is no necessity to either seek a waiver from the Veteran or remand for Agency of Original Jurisdiction (AOJ) review and consideration. 38 C.F.R. § 20.1304 (2012). Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. In August 2012, the Board remanded the case to the RO, via the AMC, in Washington, DC, for additional development. The AMC/RO completed the additional development as directed, continued to deny the claims, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The AMC completed the additional development directed in the August 2012 remand by seeking all VA treatment records related to the Veteran. 2. A July 2001 rating decision determined new and material evidence was not received to reopen a claim of service connection for a left upper extremity disorder, as any evidence added to the record did not show in-service aggravation of a preexisting left upper extremity injury or a causal connection with active service. 3. The Veteran did not appeal the July 2001 rating decision. In the absence of an appeal, the July 2001 rating decision is final. 4. The evidence added to the record since the July 2001 rating decision does not relate to either element of the new and material evidence standard, nor does it trigger a VA examination. CONCLUSION OF LAW New and material evidence has not been received sufficient to reopen the previously denied service connection claim for a left upper extremity disorder, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the rating decision appealed, VA notified the Veteran in January 2009 of the information and evidence needed to substantiate and complete a claim, both direct service connection and via 38 U.S.C.A. § 1151, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned in the event service connection is granted. The letter also informed the Veteran of the reasons the prior claim was denied and of the type evidence needed to reopen the claim. The Board finds the January 2009 letter was fully time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Kent v. Nicholson, 20 Vet. App. 1 (2006) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Hence, VA complied with the VCAA notice requirements. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Board notes the AMC sought to obtain the relevant records identified at the Veteran's Board hearing. All VA records generated in 2012 were added to the Virtual file. Neither the Veteran nor his representative asserts that there are additional records to be obtained. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See id. Thus, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the 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). Background of Claim to Reopen In April 1969, the Veteran applied for VA compensation for a left arm fracture and a left shoulder disorder. No prior conditions, abnormalities, or disorders were noted on the Veteran's 1955 Report Of Medical Examination For Induction. Service treatment records included a February 1956 complaint of trouble with the left hand, which "had been broken a long time ago." The diagnosis noted on the consult request was an old fracture of the left elbow. An x-ray was noted to have been negative. The orthopedic clinic consultation report notes the Veteran reported he had fractured his left elbow when he was 10 years of age, and he complained he could not hold a rifle up when marching at double time, and that a bone in his right shoulder stuck out too far. Physical examination was completely negative, and the physician noted that the x-rays were also negative. The physician also noted he could not detect any difference between the shoulders. The July 1957 Report Of Medical Examination For Separation was negative for any abnormalities. A June 1969 VA examination report notes the Veteran reported he fractured his left arm while a small boy and, after his two years of active service, he started suffering pains all along his left arm that radiated to the back of his head, interscapular area, and burning pains all over the distribution areas of the left bronchial plexus, and that he had occasional numbness of the left arm and hand. Physical examination revealed no functional limitation. The examiner did not diagnose a disorder of the left upper extremity. An August 1969 rating decision denied service connection for left arm fracture and left shoulder disorder, as the in-service records showed no abnormality of the left arm or fracture, and the Veteran had injured his left upper extremity prior to service. A March 1970 RO letter notified the Veteran of the decision, and he appealed it. In August 1970, the Veteran submitted a May 1970 x-ray examination report that referenced some spurring of the cervical spine, and that there was no evidence of impingement on the available foraminal spaces. The RO also received a July 1970 script from a Florencio Velez Santiago. Dr. Santiago noted he had treated the Veteran since 1967 for chronic fibromyositis and other complaints. The Veteran underwent another orthopedic examination in October 1970. X-rays of the left forearm taken prior to the examination revealed no fractures. Physical examination revealed no external evidence of a fracture of the left arm, and motion of the left wrist and arm were normal. Limitation of motion of the left elbow was noted. The examiner diagnosed residuals of left arm fracture. A November 1970 RO letter informed the Veteran there was no basis to justify a change to the August 1969 rating decision. The July 1971 Board decision noted the evidence set forth above. The Board noted further that, although existing residuals of a left arm fracture and a left shoulder condition were not noted at induction, the Veteran conceded the preexisting injury. The Board noted the in-service medical evidence was to the effect that no objective evidence of even transitory manifestations was revealed by physical examination. Further, the Veteran did not assert that his service records were incomplete. Hence, the Board determined there was no evidence the Veteran's preexisting left arm and left shoulder disorders increased in severity during his active service. Thus, there was no aggravation of the existing disorders. The Board currently interprets this to mean that the July 1971 Board decision implicitly determined the presumption of soundness was rebutted. See 38 C.F.R. §§ 3.304-3.306. A Board letter dated that same month informed the Veteran of the Board's decision. Board decisions are final when issued. 38 C.F.R. § 20.1100. In January 2001, the Veteran applied to reopen his claim. He asserted that he could not straighten out his left arm due to the constant strain of loading and carrying weapons during his active service. Evidence added to the claims file in 1977 included records generated by a VA facility in San Juan, Puerto Rico. An August 1971 entry notes the Veteran's job entailed heavy lifting and working as a truck operator. VA records of September 1980 note the Veteran's complaints of left shoulder pain, and that there was tenderness in the left shoulder joint to deep palpation. Other VA records note the Veteran's longstanding complaints of left shoulder pain over the years. A July 2001 rating decision noted the Veteran's assertion of in-service aggravation of his preexisting left arm and shoulder disorders, and that VA treatment records dated May 1969 to July 2001 were considered. The rating decision acknowledged the evidence was added after the August 1969 rating decision, and that it included evidence of a left shoulder surgery in 1988, and that the Veteran's left shoulder had manifested decreased motion since the surgery. The July 2001 rating decision determined, however, that there was nothing in the medical evidence added to the record to indicate that the Veteran's then current left shoulder disorder was causally linked to his active service and denied a reopening of the claim. An August 2001 RO letter informed the Veteran of the July rating decision and his right to appeal. The Veteran did not appeal the July 2001 rating decision. Further, the claims file indicates that no additional evidence was submitted in the interim between the July 2001 rating decision and the Veteran's current claim to reopen. See 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Thus, in the absence of an appeal or receipt of new and material evidence, the July 2001 rating decision is final. 38 U.S.C.A. § 7105. New and Material Evidence Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(d)(3). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection will be presumed for arthritis, if it manifested at least to a compensable degree within one year of separation from active service, even if there is no evidence it occurred during active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If a pre- existing disorder is "noted" on entering service, the Veteran has the burden of showing an increase in disability during service. If the Veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner, 370 F.3d at 1096. There is no aggravation of a preexisting disease or injury if the condition underwent no increase in severity during service on the basis of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Also, intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition"-that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997). Analysis The evidence added to the claims file since the July 2001 rating decision includes the Veteran's VA treatment records generated by the facility in St. Petersburg, FL, and the hearing testimony. The medical records obtained by the AMC/RO and added to the Virtual file all address the Veteran's inpatient treatment for complaints and symptomatology not related to his left upper extremity claim. To the extent the left upper extremities are noted, it is in the sense of the Veteran's personal medical history. There is no evidence suggesting that the Veteran's left shoulder and left arm disorders increased in severity during active service, or that any current left upper extremity disorders are causally related to the Veteran's active service. Thus, although new, those records are not material, as they are cumulative. At the hearing, the Veteran's, his wife's, and his son's testimony focused on the Veteran's assertions that his left shoulder disability increased as a result of surgery performed by VA, although they were asked questions specifically focused on the new and material evidence issue. See Transcript, pp. 22-25. The Board notes further that the July 2001 rating decision considered the Veteran's assertions that the rigors of his active service aggravated his preexisting left arm and left shoulder disorders, and his symptoms continued after active service. Hence, the testimony related to that basis is redundant and cumulative. Thus, the Board is constrained to find new and material evidence has not been received. 38 C.F.R. § 3.156(a). Hence, the claim is not reopened. In reaching this decision the Board considered the doctrine of reasonable doubt where applicable. Inasmuch as the Veteran has not carried his initial burden of submitting new and material evidence, however, the doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for a left upper extremity disorder, to include a left shoulder disorder. The petition to reopen is denied. REMAND A July 2008 VA examination report appears to indicate that the examiner opined the Veteran's current left shoulder symptomatology was caused by his left shoulder surgery. The examiner, however, simply noted, "It is." Further, the RO did not frame the opinion request in terms applicable to the legal standard for claims for 38 U.S.C.A. § 1151 benefits. Moreover, the Board notes the September 2008 and February 2009 rating decisions determined there was no evidence the Veteran had shoulder surgery at the St. Petersburg VA medical facility. The surgery was performed in San Juan, Puerto Rico (PR). Thus, the Board must ensure the proper records are medically reviewed under the proper legal standard applicable to the Veteran's claim. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1). 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). Whether the proximate cause of a Veteran's additional disability 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. See 38 C.F.R. § 3.361(d)(2). The Board notes a July 1988 operation report that indicates a left shoulder Neer Acromioplasty was performed at the VA San Juan, PR, medical facility. The San Juan records in the claims file do not include the Consent Form the Veteran presumably signed prior to the procedure. The AMC/RO or the RO should ascertain if the Consent Form is available. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO will seek to obtain a copy of the Informed Consent the Veteran signed prior to the July 1988 left shoulder surgery, if extant. The AMC/RO should consider the fact that the Form may be in archived records of the San Juan, PR, VA treatment facility. If the Form is in Spanish, the AMC/RO will obtain a translation into English. All actions to obtain the Consent Form should be documented in the claims file. 2. After the above is complete, regardless of whether records are added to the file, the AMC/RO will ask VHA to designate an orthopedic surgeon and, if deemed necessary, a neurologist, who has not previously reviewed the claims file, to conduct a thorough review of the claims file. Ask the examiner to address the following questions: a) Was there a worsening of the Veteran's left shoulder symptoms due to the July 1988 surgery? b) If so, is there at least a 50-percent probability that any increase in the Veteran's left shoulder symptoms were due to either (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing such care or treatment; or (b) was not a reasonably foreseeable consequence of the care or treatment provided? The examiner is asked to provide a full explanation for any opinion(s) rendered. 3. After completion of all of the above, the AMC/RO should re-adjudicate the issue on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with an SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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 remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs