Citation Nr: 1315470 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-44 147 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for residuals of a right shoulder injury (previously characterized as a "right shoulder injury") has been received. 2. Entitlement to service connection for residuals of a right shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1951 to June 1955. A claim for service connection for a right shoulder injury was denied by the RO in April 2007. Although notified of the denial, the Veteran did not appeal. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2009 rating decision in which the RO declined to reopen a previously-denied claim for service connection for residuals of right shoulder injury(on the basis that new and material evidence to reopen the claim had not been received), as well as denied service connection for bilateral hearing loss and tinnitus. In May 2010, the Veteran, through his representative, filed a notice of disagreement (NOD). In a September 2010 rating decision, the RO granted the Veteran's claims for service connection for bilateral hearing loss and tinnitus.. Also in September 2010, the RO issued a statement of the case (SOC) which reflects the RO's continued denial of the request to reopen. The Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2010. In his October 2010 substantive appeal, the Veteran requested an in-person Board hearing at the RO (Travel Board hearing ) or a Board video-conference hearing before a Veterans Law Judge. In May 2012, the Veteran testified during a Board video-conference before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claims file. During the hearing, the Veteran's representative requested, and the undersigned granted, a 60-day abeyance period for the submission of additional evidence in support of the claim on appeal. In May 2012 the Board received additional evidence from the Veteran's representative with a waiver of initial RO consideration. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Also during the hearing, the undersigned advanced the Veteran's appeal on the docket due to his advanced age. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). Regarding characterization of the appeal, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the previously-denied claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board has characterized the appeal as involving a request to reopen the previously-denied claim-and, given the favorable disposition on this aspect of the appeal-as well as the claim for service connection, on the merits (as reflected on the title page). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. The Board's decision reopening the claim for service connection for residuals of a right shoulder injury is set forth below. The reopened claim is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. In an April 2007 rating decision, the RO denied the Veteran's claim for service connection for residuals of a right shoulder injury; although notified of the denial in April 2007, the Veteran did not initiate an appeal of the decision. 3. Evidence associated with the claims file since the April 2008 rating decision, but after the relevant appeal period, is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of a right shoulder injury and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2007 rating decision in which the RO denied service connection for residuals of a right shoulder injury is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012). 2. As pertinent evidence received since the April 2007 denial is new and material, the criteria for reopening the claim for service connection for residuals of a right shoulder injury are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the Board's favorable disposition of the request to reopen the claim for service connection for residuals of a right shoulder injury, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. II. Analysis Under the legal authority in effect at the time of the prior denial and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be presumed for certain chronic diseases, to include arthritis, which are manifested to a compensable degree within a prescribed period after service (one year for arthritis). 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran's original claim for residuals of a right shoulder injury (characterized as "right shoulder injury") was denied in an April 2007 rating decision. The evidence of record at the time of the April 2007 denial included the Veteran's service treatment records, which are silent for any right shoulder-related complaints and show clinically normal upper extremities at service separation. Post-service VA treatment records, showing treatment for right shoulder complaints following a right rotator cuff tear, were also of record. In January 2007, the Veteran submitted a statement describing his alleged in-service injury and stating that, over the years, he has been having pain in his right shoulder rotator cuff as a result. The RO essentially denied the claim because of the absence of any reference to the shoulder in service and medical evidence of a relationship between claimed in-service injury and current right shoulder symptomatology. Although the Veteran was notified of the denial and his appellate rights in an April 2007 letter, he did not initiate an appeal. No additional evidence was received within one-year following notification of the denial, and no additional service records were received at any point, warranting readjudication of the claim. See 38 C.F.R. § 3.156(b), (c). As such, the RO's April 2007 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran filed his request to reopen in August 2009. Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as 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). New evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would trigger the Secretary's duty to provide a medical examination or opinion. Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "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 duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the 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 provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim is the RO's April 2007 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Pertinent evidence added to the claims file since April 2007 includes a May 2012 letter from the Veteran's VA treating physician, which notes the Veteran's alleged in-service right shoulder injury, and states that "it is likely more than unlikely that a previous injury may have caused this tear." The Board finds the foregoing evidence is "new" in that it was not before agency decisionmakers at the time of the April 2007 final denial of the claim for service connection for residuals of right shoulder injury, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it shows a possible nexus between the Veteran's claimed in-service injury and current residuals of a right shoulder injury. Although the physician did not explicitly reference an in-service injury, when considered along with the Veteran's assertions, the opinion at least implies such an injury-the only "previous" injury referenced in the record. As the record previously included no evidence even suggesting a link between current shoulder disability and service, the opinion raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for residuals of a right shoulder injury are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence to reopen the claim for service connection for residuals of a right shoulder injury has been received, to this limited extent, the appeal is granted. REMAND As discussed above, the Board is reopening the Veteran's claim for service connection for residuals of a right shoulder injury; however, a review of the record reflects that the RO has not considered this claim on the merits. Under these circumstances, and to avoid any prejudice to the appellant, a remand for RO consideration of the claim for service on the merits, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board also finds that additional RO development of the reopened claim for service connection for residuals of a right shoulder injury is warranted. In this regard, the Board notes that the May 2012 VA physician's letter, the sole medical opinion of record, is ambiguous as to whether the physician is actually linking the Veteran's residuals of a right shoulder injury to his claimed in-service injury, or just a previous, unspecified injury. As such, the current medical opinion evidence-while sufficient to reopen the claim-is inadequate to resolve the claim for service connection, on the merits. Therefore, the Board finds that an examination and more definitive medical opinion, based on full consideration of the record, and supported by clearly-stated rationale, is needed to resolve the claim for service connection. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, shall result in denial of the reopened claim for service connection for a right shoulder disability. See 38 C.F.R. § 3.655(b) (2012). examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the examiner and the RO is complete, the RO should obtain and associate with the claims file all outstanding, pertinent records. Regarding VA records, the claims file includes VA treatment records, dated from June 2005 through November 2009, showing treatment for the Veteran's right shoulder. As this treatment appears to be ongoing, more recent VA records may exist. Moreover, the Veteran indicated in a January 2007 statement that he had been receiving care at VA hospitals since the late 1980s--and specifically, that he'd been receiving care for his right shoulder from Dr. Antonio Lazzari from the year 2000 to the present-from the following VA Medical Centers (VAMCs): Boston, Brockton, and West Roxbury. As mentioned, the earliest VA treatment records in the claims file date from June 2005, such that there may be outstanding earlier, relevant records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facilities all outstanding, pertinent records prior to June 2005 and since November 2005. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim for service connection on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private medical records, and/or any statements or documents to support his claim of in-service injury and continuing symptoms. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for residuals of a right shoulder injury. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Boston, Brockton and West Roxbury VAMCs any outstanding, pertinent records of evaluation and/or treatment of the Veteran dated prior to June 2005 and since November 2009. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to the claim for service connection for residuals of a right shoulder injury that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private medical records, and/or any statements or documents to support his claim of in-service right shoulder injury and continuing symptoms. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should identify all current right shoulder disability. Then, with respect to each such diagnosed disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically-related to service, to include as a residual of claimed in-service injury. The physician should set forth all examination findings, along with a complete, clearly stated rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for residuals of right shoulder injury. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim , apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim, on the merits, in light of all pertinent evidence and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs