Citation Nr: 1318579 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-12 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for the residuals of an injury of the left upper extremity (left arm disability). 2. Entitlement to service connection for the residuals of an injury of the left upper extremity (left arm disability). 3. Entitlement to an initial disability evaluation in excess of 0 percent for the service-connected postoperative residuals (scar) of the excision of a hematoma from the left side of chest. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty form September 1979 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision that denied service connection for a left arm disability, and from an October 2007 rating decision that granted service connection for a scar with an evaluation of 0 percent. Service connection for a left arm disability was denied by an unappealed September 2007 decision by the Board. The Veteran filed a claim to reopen in March 2009. In June 2009, the RO denied his claim on the merits and did not treat his claim as a claim to reopen. However, the question of whether new and material evidence has been received to reopen the claim of service connection for left arm disability must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The issue of an initial rating for the Veteran's service-connected scar 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. In September 2007, the Board denied service connection for a left arm disability, on the basis that there was no causal relationship between a current disability and service. 2. Evidence received since the final September 2007 Board decision includes evidence not of record at the time of that decision; relates to an unestablished fact necessary to substantiate the claim of service connection; and raises a reasonable possibility of substantiating the claim. 3. The Veteran's left arm disability (mild carpal tunnel syndrome) first manifested many years after his separation from service and is unrelated to his period of service or to any incident therein. CONCLUSION OF LAW Residuals of an injury to the left arm were not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The Veteran did not receive a letter that provided him with notice that complied with Kent. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007), which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm. In reversing Sanders, the Supreme Court in essence held that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki, 129 S. Ct. at 1704-06. The appellant has not alleged that he was prejudiced because he did not receive this notice. Notably, because the Board is reopening the Veteran's claim, there is no prejudice to the Veteran. As to notice regarding the underlying service connection claim, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA satisfied its duty to notify by way of a letter sent to the Veteran in March 2009 notifying him of the criteria for establishing service connection for a left shoulder disorder, of his and VA's respective duties for obtaining evidence, and how VA determines disability ratings and effective dates. Accordingly, the pre initial adjudication letter addressed all notice elements. Further, as he had the opportunity to present evidence and testimony in support of the underlying service connection claim throughout the appeal, and the claim was adjudicated on the merits by the RO, the Board finds no prejudice to the Veteran in proceeding with an adjudication on the merits of this claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. VA medical examinations dated in August 2002 and January 2007 are of record. The January 2007 examiner reviewed the claims file and the Veteran's medical history, in addition to performing a thorough examination prior to providing an opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The appellant has not identified any evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. New and Material Evidence A final decision can be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). A September 2007 Board decision denied the Veteran service connection for a left arm disability based essentially on a finding that there was no nexus between a current disability and service as well as a finding of no current left shoulder disability by VA examiner. It became final based on the evidence of record at the time of the decision, and may not be reopened or allowed based on such evidence. 38 U.S.C.A. § 7105. The evidence of record at the time of the September 2007 Board decision included the Veteran's service medical records, which noted a complaint in June 1980 of left shoulder pain. The assessment was muscle spasm of the left shoulder. Postservice VA treatments noted continued complaints of left shoulder pain and normal shoulder X-rays. An August 2002 VA examination report was of record, which contained a diagnosis of pain in the left shoulder secondary to trabecula compaction-type fracture to the superior glenoid rim with moderate functional loss. A January 2007 VA examination report was also of record, which noted that EMG testing in March 2004 had revealed mild carpal tunnel syndrome of the left upper extremity. Evidence received since the September 2007 Board decision consists of new lay statements submitted by the Veteran, wherein he states that he has pain, that his left shoulder is lower than his right, and that he is losing strength in that shoulder. He also indicated that he currently has muscle spasms. This evidence is new evidence in that it was not received prior to the September 2007 Board decision and it is material, as it addresses current left shoulder symptomatology. See also Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (Section 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim."). Thus, the additional evidence received is new and material, and the claim of service connection for a left arm disability is reopened. Service Connection Applicable law provides that 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. §§ 1110, 1131; 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). In order to establish service connection for a claimed disability, there must be 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Additionally, the Board notes that it has reviewed all evidence in the claims file and in the Veteran's electronic case file (Virtual VA), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran asserts that he injured his left arm in June 1980 when a box full of canned goods fell from a shelf above him, hitting him in the left shoulder and left side of his chest. His service medical records confirm that he reported to sick call in June 1980 complaining of left shoulder pain which prohibited him from lifting objects. He reported that he slept on his left shoulder. Physical examination at that time revealed full range of motion of the left shoulder without pain. He was given pain medication and ordered back to duty. The assessment was muscle spasm of the left shoulder. His service medical records do not otherwise reflect complaints of or treatment for left arm or shoulder pain. A report of examination at separation from service is not of record. In May 2004 testimony before the Board, the Veteran reported that his left arm had begun hurting in approximately 1999. The first post-service clinical evidence of a complaint of left arm pain is dated in August 1999. At that time, the Veteran had been referred for psychiatric evaluation secondary to back pain, and reported at that time that his left arm also hurt. An examination of his left arm was not conducted. However, no tremors were noted at the time of the evaluation. The next report of left arm pain is dated in June 2002. At that time the Veteran complained of left arm and shoulder pain that had intermittently been present since 1983. The pain had reportedly worsened in the past nine months. There was no obvious swelling of the arm or shoulder noted. X-ray examination of the left shoulder revealed no distinct bone or joint abnormality. The impression was normal left shoulder. In August 2002, the Veteran again complained of left shoulder pain. He additionally noted that he had been experiencing tremors in his left arm. He stated that when his left shoulder had been X-rayed his arm was internally rotated at the shoulder, increasing his pain. Physical examination revealed good but painful range of motion of the left shoulder, with strength that was felt to be within normal limits. He was noted to hold his left arm in an adducted position when he walked. Additionally, he was noted to have a mild left deltoid atrophy compared to the right. He had a positive cross arm maneuver, positive Hawkins sign, positive pain on compression of his acromioclavicular joint, and a positive empty can test. It was not felt that he had a rotator cuff tear. The impression was probable left rotator cuff strain versus acromioclavicular strain. He was referred for occupational therapy. However, the Veteran stated that he would not be able to attend such a program. He was accordingly given home exercise instructions and advised to follow up as needed. An August 2002 letter from the Veteran's private physician indicated that the Veteran was receiving treatment for cervical brachial syndrome. The Veteran underwent VA examination of his left upper extremity in August 2002. On examination in August 2002, the Veteran complained of muscle spasms in the left arm and tremors in the left hand for the last 10 years. On physical examination, the Veteran was able to abduct his shoulder to 30 degrees actively. He stated he was unable to do any other range of motion of the left shoulder without extreme pain. There was mild tenderness of the left arm and left shoulder. There was no swelling noted. He had minimal wasting of the left deltoid and left biceps muscles. The examiner noted that a June 2002 X-ray of the Veteran's left shoulder had been normal. In an addendum to the examination, the examiner noted that a September 2002 MRI of the left shoulder, however, had revealed a trabecula compaction-type fracture of the superior glenoid rim without complication. The diagnosis was pain in the left shoulder secondary to trabecula compaction-type fracture to the superior glenoid rim with moderate functional loss. The examiner did not comment as to whether the Veteran's left shoulder disability was related to any in-service injury. The next record of a complaint of left arm pain is dated in February 2003. Physical examination at that time revealed tenderness over the left shoulder. It was felt that he might have a tear of the rotator cuff. The Veteran was referred to an orthopedic surgeon for additional evaluation. In May 2003, the Veteran again complained of left arm pain. He stated that he had not followed up with the orthopedic surgeon. On follow up evaluation in November 2003, the Veteran reported that he had been evaluated by the orthopedic surgeon, who had determined that surgery was not indicated. In February 2004, the Veteran's persistent complaints of left arm discomfort, the Veteran was referred for a cardiovascular work-up, which had not revealed any abnormalities. The Veteran was noted to have slight tremors in the left upper extremity. As a result of his tremors, he was scheduled for an NCV/EMG test for the left upper extremity. Neurological evaluation of the left upper extremity in March 2004 revealed mild left carpal tunnel syndrome without evidence of denervation. There was no evidence of left cervical radiculopathy. Records dated in April 2004 show that the Veteran had been prescribed Neurontin for his carpal tunnel syndrome, without success. The Veteran was reportedly not interested in being on medication at that time. The Veteran again underwent VA examination of his left upper extremity in January 2007. In the January 2007 report of examination, the examiner noted that the Veteran had undergone EMG testing in March 2004, which had revealed mild carpal tunnel syndrome of the left upper extremity, and no abnormalities of the cervical spine. At the time of the January 2007 examination, the Veteran complained of constant pain in the left side of his neck, and constant pain in the posterior and anterior aspects of his left shoulder radiating down his left upper extremity, resulting in numbness of the fingers of his left hand. Physical examination of the left shoulder revealed flexion to 180 degrees, abduction to 180 degrees, adduction to 50 degrees, external rotation to 85 degrees, and internal rotation to 85 degrees, with pain, representing normal range of motion of the left shoulder. There was no spasm present in the left shoulder. Deep tendon reflexes of both upper extremities were grade 4 at the biceps, triceps, and radial areas. All major muscle groups of both upper extremities were graded at 5. There was no dermatome loss of sensation in either upper extremity. After repetitive use, there was no increased loss of left shoulder motion due to pain, fatigue, weakness, lack of endurance, or incoordination. There was a mildly positive Phalen sign of the left wrist and hand. Tinel's sign was negative in this area. No atrophy of the left upper extremity was noted. There was no tenderness over the left cubital tunnel. X-ray examination revealed no abnormalities of the neck or left shoulder. The diagnosis was mild left carpal tunnel syndrome. A left shoulder disability was not diagnosed. After reviewing the Veteran's claims file and conducting the examination, the examiner determined that it was less likely than not that his carpal tunnel syndrome was either caused or aggravated by the in-service injury. In the Veteran's claim to reopen and his substantive appeal (VA Form 9), the Veteran reported that his left shoulder hangs and is lower than his right shoulder. He also stated that his shoulder hurts all the time and that he has muscle spasms. In a July 2009 statement, the Veteran stated that he reported his shoulder hurting in June 2002 and it still hurts presently. While in June 2002 the Veteran reported that he had experienced left shoulder discomfort since 1983, there are no records which reflect treatment for left arm or shoulder problems dated prior to August 1999, nearly 17 years after his separation from active service. This lengthy period weighs heavily against a finding that there is an indication that any current left arm or shoulder problems are related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, there is no clinical evidence of a chronic left arm or shoulder condition during the Veteran's period of active service. Following the June 1980 complaint, there are no further complaints of left arm or shoulder pain. Additionally, the January 2007 VA examiner found no current evidence of a left shoulder disability, the only complaint for which the Veteran was specifically treated in service. The examiner additionally determined that it was less likely than not that the Veteran's current diagnosis of mild carpal tunnel syndrome was related to the in-service injury. Significantly, there is no evidence of any finding to the contrary. As there is no evidence of a current left shoulder disability that is related to service nor any evidence establishing a medical nexus between military service and the Veteran's current left carpal tunnel syndrome, service connection for the residuals of an injury to the left upper extremity is not warranted. Furthermore, although an MRI indicated a trabecula compaction-type fracture of the superior glenoid rim without complication, there is no evidence of record relating that disability to the Veteran's service. Although only a layperson, the Veteran is competent to report such observable symptomatology as left shoulder pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board has considered the Veteran's assertions that his current left arm problems are related to his period of active service. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining a nexus between a left shoulder disability and service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In sum, the weight of the evidence demonstrates that the Veteran's left upper extremity problems first manifested many years after his period of active service and are not related to his active service or to any incident therein. As the preponderance of the evidence is against the Veteran's claim for service connection for the residuals of an injury of the left upper extremity, the "benefit of the doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the residuals of an injury of the left upper extremity (left arm disability) is denied. REMAND The Veteran is seeking a compensable rating for his service-connected scar. He was afforded a VA examination of his chest in January 2007. At that time, he was observed to have a well-healed 4 centimeter, non-tender, post-operative scar over the left breast. There was no chest wall deformity or tenderness. In an April 2009 statement (which the RO accepted as a substantive appeal regarding the Veteran's scar), the Veteran contended that there is tenderness and pain with his scar. In subsequent statements, he has continued to report scar pain. The Board interprets these statements as a worsening of his condition and thus finds that a new examination is warranted. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the Veteran's statements suggesting an increase in the severity of symptoms, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's service-connected scar. Accordingly, the case is REMANDED for the following actions: 1. The RO should take appropriate action to obtain and associate with the claims file any pertinent outstanding VA and private medical records to the claim on appeal. 2. After obtaining the above evidence, to the extent available, the Veteran should be scheduled for an appropriate VA examination to determine the current severity of his chest scar. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. 3. The RO should ensure that the development sought above is completed, and then readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the 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 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). ______________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs