Citation Nr: 1316445 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 12-11 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a tropical blood disease, and if so, whether service connection is warranted. 2. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a left shoulder disability, and if so, whether service connection is warranted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1942 to October 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a Board hearing at the RO in Muskogee, Oklahoma in October 2012. This transcript has been associated with the file. 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). The issue of entitlement to a TDIU 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. FINDINGS OF FACT 1. The Veteran's claims of entitlement to service connection for a tropical blood disease and a left shoulder disorder were denied in a January 2008 rating decision; the Veteran did not perfect an appeal. 2. Evidence associated with the claims file since January 2008 is new and material and raises a reasonable possibility of substantiating the claims of entitlement to service connection for blood and left shoulder disorders. 3. The Veteran's blood disease and left shoulder disorder are related to service. CONCLUSIONS OF LAW 1. Evidence received since the January 2008 rating decision that denied service connection for a tropical blood disease and a left shoulder disorder, which was the last final denial with respect to these issues, is new and material; the claims are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012). 2. The criteria for the establishment of service connection for a tropical blood disease and left shoulder disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is reopening the Veteran's claims and granting entitlement to service connection, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Previously denied claims may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2012). 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision-makers, and "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. The 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is 'low.' Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The appellant brought a prior claim for service connection for a tropical blood disease and left shoulder disorder in October 2005. These claims were denied in a January 2008 rating decision. The Veteran was notified of this decision in January 2008. The Veteran did not appeal this decision and it is final. 38 U.S.C.A. §§ 7103, 7266. The appellant filed his petition to reopen his claims in March 2011. At the time of the January 2008 denial, the evidence of record included VA treatment records, service treatment records, and the Veteran's personal statements. The RO denied the claims due to a lack of a nexus between an in-service injuries or disease and the Veteran's claimed disorders. The evidence received since the January 2008 rating decision includes VA treatment records and medical opinions. Significantly, a January 2013 orthopedic examiner stated it was at least as likely as not that the Veteran's left shoulder disability was related to service. A May 2013 opinion also stated it was likely that the Veteran's blood disorder was related to service. This evidence is new, as it was not previously of record at the time of the January 2008 rating decision. It is also material in that it helps to support the Veteran's claims that his disorders are related to service. Therefore, the claims are reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, 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). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends that his blood disease began in service and that he now has constant itching and a rash as secondary to this disorder. He also contends that his left shoulder was originally injured in service when his drill sergeant sat on it in an attempt to make it flat to the ground. For the reasons discussed below, the Board finds service connection is warranted. Although the Veteran's service treatment records have no defects noted for the claimed conditions, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. In September 2004 the Veteran reported a high school football injury to his left shoulder, and then a reinjury in service when his instructor sat on his shoulder. He reported intermittent paresthesias for the previous 15-20 years and pain with limitation of motion since the in service injury. In August 2004 the Veteran was diagnosed with chronic rotator cuff tear of the left shoulder. A January 2008 VA treatment record found no evidence of a parasitic infection. In an April 2008 VA treatment record the Veteran was shown to have shoulder arthritis. In a July 2011 VA examination the Veteran reported he was unable to use his left arm. Throughout the VA treatment records the Veteran has complained of, and been treated for, various skin disorders including pruritus and eczema. See e.g., May 2005 and August 2007 VA treatment records. At his October 2012 Board hearing the Veteran testified that his blood disorder began in service and that he was treated in a field hospital. He also testified that he has experienced constant itching and a rash as part of this disorder. He further testified that his drill sergeant sat on his left shoulder in an attempt to flatten his shoulder to the ground. He testified that he was treated in the 1940's following separation from service, but he was informed there was no treatment for his shoulder. In January 2013 a VA physician offered an opinion that it was likely the Veteran's current left shoulder disorder was related to service. His rationale was that the Veteran entered service with a left shoulder disability which was then aggravated in-service when his drill instructed sat on his shoulder. The Veteran has also had confirmed findings of left proximal humerus and chronic rotator cuff tear, arthritis, and left shoulder impingement. He also stated the Veteran's described symptoms were credible in relation to his current disabilities. A May 2013 VA physician opined it was likely that the Veteran's had a current disability that was related to his military service and it was more likely than not that his strongyloides were acquired while in service in the Pacific. His rationale was that the Veteran had no significant travel history to places associated with endemic strongyloides, other than while in the military. He also noted that the areas where the Veteran was sent had soil that was significantly more infectious than soil in the United States. At the very least, the Board finds the evidence is in relative equipoise. While there is not a diagnosis of a blood disease or left shoulder disorder in service, VA examiners have opined that it is at least as likely as not that these conditions are related to service. The Board will resolve all reasonable doubt in favor of the Veteran and the claims of entitlement to service connection for a blood disease and left shoulder disorder are granted. 38 U.S.C.A. § 5107 (West 2002). ORDER New and material evidence having been received; the claim of entitlement to service connection for a blood disorder is reopened. Entitlement to service connection for a tropical blood disease is granted. New and material evidence having been received; the claim of entitlement to service connection for a left shoulder disorder is reopened. Entitlement to service connection for a left shoulder disorder is granted. REMAND A TDIU claim may be granted upon a showing that the Veteran is unable to obtain and maintain a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or occupational impairment caused by nonservice-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19. Although the issue of entitlement to a TDIU was previously denied in the September 2011 rating decision, this decision only took into account whether he could maintain substantially gainful employment based on his then service-connected disabilities of bilateral hearing loss, tinnitus, and shell fragment wounds to the left hand and back. However, the Veteran has now been granted service connection for a blood disease and left shoulder disorder. As the record now reflects an increase in the Veteran's service-connected disabilities, the issue of entitlement to a TDIU must be remanded to the Agency of Original Jurisdiction (AOJ) for additional development. 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. Have an appropriate VA examiner provide an opinion as to the effects of the Veteran's service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should note that the Veteran is service-connected for bilateral hearing loss, tinnitus, shell fragment wounds of the left hand and back, a blood disease, and a left shoulder disability. Based on a review of the case and the claims file, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, acting alone or together, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinion. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why this is so. 2. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 that are 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs