Citation Nr: 1313771 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 08-35 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for recurrent right shoulder dislocations. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from April 1968 to July 1968. This claim comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Department of Veterans Affairs Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge in September 2012; and before a Decision Review Officer at the RO in April 2012. A review of the Virtual VA paperless claims processing system reveals no additional pertinent documents for consideration in support of this claim. FINDINGS OF FACT 1. In an unappealed decision issued in July 1981, the Board denied the Veteran service connection for recurrent right shoulder dislocations. 2. The evidence received since July 1981 does not relate to an unestablished fact necessary to substantiate the claim for service connection for recurrent right shoulder dislocations or raise a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The July 1981 decision, in which the Board denied the Veteran service connection for recurrent right shoulder dislocations, is final. 38 U.S.C. § 4004(b) (1976); 38 C.F.R. § 19.104 (1981). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for recurrent right shoulder dislocations. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA must comply with the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006) ), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In the context of a claim that has been previously denied, the notice must inform the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In informing the claimant of what evidence would be considered new and material, VA must examine the basis for the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in the previous denial. Id. Ideally, VCAA notice should be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing the claimant any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial and, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how such error is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In the context of a claim to reopen, VA's duty to assist is limited to the following: (1) making reasonable efforts to obtain non-Federal department or agency records; (2) obtaining records in the custody of a Federal department or agency; and (3) obtaining VA and military records. 38 C.F.R. § 3.159(c)(1), (2) and (3). VA is not required to afford a claimant a medical examination when he or she is seeking to reopen a previously and finally disallowed claim, prior to a determination that new and material evidence has been received. See Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). Notice The RO provided the Veteran VCAA notice by letter dated December 2006. This letter is timely having been sent prior to the RO's initial adjudication of the Veteran's claim. The RO notified the Veteran of the evidence needed to substantiate his claim to reopen, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was reviewing his petition pursuant to that duty. The RO also notified the Veteran of the basis of the last denial of his claim. The RO identified the evidence it had requested and/or received and the evidence it was responsible for securing. The RO indicated it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the sources of it. The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence. When a veteran testifies at a hearing before the Board, as did the Veteran in this case, he or she is entitled to additional notification. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ who chairs a hearing must satisfy two notification duties, including: (1) fully explaining the issue; and (2) suggesting the submission of evidence that may have been overlooked. During the Veteran's April 2010 hearing, the undersigned Veterans Law Judge (VLJ) fully explained the issue by specifically questioning the Veteran regarding his testimony that his right shoulder dislocations happened or worsened during military service. The VLJ asked the Veteran whether a doctor had told him that that his right shoulder problems initially manifested or became aggravated during service. See transcript at pages 13-15 (Sept. 19, 2012). The VLJ also suggested the submission of certain evidence. In response to the Veteran's testimony that one private physician had related his right shoulder disability to active service and another had indicated that it may have been aggravated beyond its natural progression during service, the VLJ asked whether VA had these physicians' treatment records in the claims file and whether the records included the physicians' opinions. The Veteran responded affirmatively, but identified other outstanding treatment records that needed to be associated with the claims file. The VLJ indicated that he would hold the record open so that the Veteran could secure such records. See transcript at pages 7-10, 13, 15-18. The VLJ advised the Veteran that he could also submit lay statements from individuals who knew him prior to and during service and were willing to comment on his right shoulder problems. The VLJ also advised the Veteran to submit competent evidence establishing a relationship between his right shoulder disorder and service either on a direct or aggravation basis and explained what constitutes "competent" evidence. See transcript at pages 13-14. The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. Conway v. Principi, 353 F.3d at 1374. Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions. Assistance The RO also satisfied its duty to assist the Veteran in the development of his application to reopen his claim by trying to secure and associate with the claims file all documents the Veteran identified as being pertinent to his claim. The RO and the Board further assisted the Veteran by affording him an informal conference at the RO and a video conference hearing before the Board. The RO did not afford the Veteran a VA right shoulder examination; however, as previously indicated, given that this is an application to reopen a previously denied claim which is presently denied, such action is not mandated. Analysis The Veteran seeks service connection for recurrent right shoulder dislocations on an aggravation basis, asserting that a preexisting shoulder disorder worsened during service beyond its natural progression. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, to prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The RO and the Board previously denied the Veteran's claim for service connection for recurrent dislocations of the right shoulder on multiple occasions from 1968 to 1981. In a July 1981 Board decision, which subsumed a prior RO rating decision, the Board considered the following in support of the claim: (1) the Veteran's written statements asserting that an asymptomatic right shoulder dislocation disorder preexisted service and, during service, became symptomatic due to aggravation from an injury; (2) his hearing testimony that he had a right shoulder dislocation in 1964 and three subsequent dislocations prior to service (none causing swelling and tenderness), two dislocations during service (causing swelling and tenderness) and one dislocation the week after he got out of service and had undergone two right shoulder surgeries; (3) multiple lay statements from friends and family indicating that the Veteran had no right arm problems prior to service but after service had such problems that interfered with his employment and physical activities; (4) a report of VA hospitalization from January 1974 to March 1974, which included a reported history of recurrent right shoulder dislocations since the age of 14 and surgery for that condition in September 1968; (4) January 1974 x-rays showing degenerative arthritis in the right shoulder; (5) records of VA right shoulder treatment from 1974 to 1980; and (6) records of a 1965 private hospitalization, which do not refer to the Veteran's right shoulder. The Board found this evidence not new and material on the basis that it did not establish either the incurrence or aggravation of a right shoulder dislocation during service. When the Board disallows a claim, the disallowance becomes final unless the Chairman determines that reconsideration is warranted, or another exception to finality applies. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). In this case, the Board notified the Veteran of his appellate rights with regard to the July 1981 decision. The Veteran did not, however, seek reconsideration of the decision or appeal it to the Court and VA received no new and material evidence within one year of the decision. See 38 C.F.R. § 3.156(b). The July 1981 decision is thus final. 38 U.S.C. § 4004(b) (1976); 38 C.F.R. § 19.104 (1981). The Veteran attempted to reopen this claim by multiple written statements received in 1992. The RO twice sent him letters indicating that the claim had already been denied and advising him to submit new and material evidence to support his claim. The Veteran did not respond to these advisements and the Veteran's applications to reopen his claim were therefore abandoned. 38 C.F.R. § 3.158 (2012). In a written statement dated August 2006, the Veteran again attempted to reopen his claim for compensation for a right shoulder disorder. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the 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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. The Court interpreted the phrase 'raise[s] a reasonable possibility of substantiating the claim' as 'enabling rather than precluding reopening,' and emphasized that the relevant regulation was designed to be consistent with 38 C.F.R. § 3.159(c)(4), which 'does not require new and material evidence as to each previously unproven element of a claim.' Id. at 120. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The evidence that has been associated with the claims file since the Board's July 1981 decision includes the Veteran's written statements and hearing testimony, service personnel records and post-service treatment records. Some of this evidence is new - neither cumulative, nor redundant of the evidence previously of record - but none is material. However, by itself or when considered with the evidence previously of record, this evidence does not relate to an unestablished fact necessary to substantiate the claim for service connection for recurrent right shoulder dislocations or raise a reasonable possibility of substantiating that claim. The Veteran's written statements and testimony reflect his belief that his recurrent right shoulder dislocations were aggravated during active service. According to the written statements initially submitted, when the Veteran entered service, he was capable of doing manual labor, including lifting 150-pound objects over his head, but after hurting his right shoulder in service, he became unable to perform certain labor-intensive tasks, including lifting in excess of 30 pounds. Allegedly, prior to service, he played multiple sports, including football, with no problems. He asserts that, after being drafted, while climbing across an overhead ladder wearing combat boots during basic training, he dislocated his right shoulder. He initially questioned the RO's finding that he injured his right shoulder when he was 14 years old. He argued that if this injury occurred as alleged, he would not have been able to participate in sports; he would not have been inducted and allowed him to participate in physical training; and he would not have passed the physical evaluation. According to his 2006 application for compensation, he injured his right shoulder in May 1968, during service. According to written statements he submitted after 2006 and his hearing testimony, he aggravated his right shoulder within a week of his participation in basic training, thereby hindering his ability to continue training and resulting in his discharge from service based on physical disability. He allegedly injured his right shoulder by dislocating it while participating in a physical training exercise of moving from bar to bar on a horizontal overhead ladder using his hands and carrying his entire body weight and extra gear. The Veteran asserts that, from sophomore to senior years, he played softball, basketball and football. Allegedly he had an original right shoulder football injury (muscle strain) prior to service, which required no special treatment or hospital care, but rather, the wearing of an arm sling. He claims that after the injury, his arm improved and he had no further problems with the right shoulder until he dislocated it during basic training. He asserts that a military doctor told him that he had recurrent dislocations and was not physically fit to be drafted. Thereafter, his right shoulder function declined, necessitating surgery in 1969 at the Wade Park VA hospital. The Veteran notes that he underwent additional surgery, which fixed the dislocation, but not his right shoulder residuals. The Veteran contends that doctors told him that his right shoulder disorder is related to service, but that one did so based on the Veteran's relating this fact to him. He asserts that their opinions are in the treatment records located in the claims file. The Veteran also contends that he submitted lay statements from individuals who knew him prior to service and could comment on the issue of aggravation, but that VA did not accept the statements as sufficient to reopen his claim. The Veteran's assertions are not new. He expressed essentially the same assertions, but with less detail, prior to the Board's last final denial of this claim. These statements and the testimony thus represent an elaboration of his prior assertions and continue to reflect his belief that his recurrent right shoulder dislocations preexisted service and were aggravated beyond their natural progression during service. The Veteran is competent to state that his right shoulder pain increased during and after service or to report lay-observable right shoulder symptoms, but given that he has no expertise in medical matters, his statements are not competent evidence of aggravation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay-observable symptoms, but lacking in medical training and expertise, is not competent to diagnose a medical condition or provide an opinion on causation). Regarding the service records, under the provisions of 38 C.F.R. § 3.156(c), notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to service records that are related to a claimed inservice event, injury, or disease. See 38 C.F.R. § 3.156(c)(i). Here, the service personnel records do not refer to the Veteran's right shoulder; therefore, the Board need not consider them in support of this claim. The post-service treatment records reflect that, since 1981, the Veteran has continued to receive treatment for right shoulder problems, but during treatment visits, no medical professional related these problems to his active service or indicated that they preexisted such service and were then aggravated. These records show that, in 1994, the Veteran sustained a contusion and blunt-type trauma secondary to a vehicle accident at work, which exacerbated his already severe, end-stage right shoulder osteoarthritis. In January and February 1995, during pre-surgical consultations, T. Thompson, M.D., recorded the Veteran's report of a remote history of right shoulder surgery in 1970 with no problems until the accident, but did not mention the Veteran's service or any in-service right shoulder problems. The Veteran then underwent a right shoulder hemiarthroplasty, the report of which notes severe, worsening osteoarthritis for a period of several years accentuated by the work accident. In 2001 the Veteran slipped and fell twice, straining his right shoulder and necessitating an arthrogram. In 2002, he again strained his right shoulder. In 2010, he was in a work accident, after which he began to feel discomfort in his right shoulder. During treatment visits for pain, he reported surgery in 1990, after which he had done quite well. Neither he, nor any examining treatment provider mentioned the Veteran's service. In 2011, he underwent right shoulder surgery. These records do not offer any information into the question of whether the Veteran's preexisting right shoulder dislocations were aggravated during service as they do not include any medical commentary on the matter. The absence of this type of evidence formed the basis of the Board's previous denial of the claim of entitlement to service connection for recurrent right shoulder dislocations. Given that this type of evidence remains absent from the claims file, the Board may not reopen and must deny the Veteran's claim to reopen on the basis that new and material evidence has not been received. ORDER New and material evidence not having been received, the claim of entitlement to service connection for recurrent right shoulder dislocations is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs