Citation Nr: 1318826 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-06 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a low back and spine disorder, diagnosed as degenerative joint disease. 2. Entitlement to service connection for residuals of hepatitis C, claimed as a liver disorder. 3. Entitlement to service connection for residual scars of the shoulders and head. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from June 20, 2005, to August 12, 2011. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disorder, to include as secondary to a neck or cervical disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Senior Counsel INTRODUCTION The Veteran served on active duty from November 1978 to February 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the New York, New York Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2010, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the proceeding is of record. In July 2011, the Board issued a decision addressing fifteen issues then on appeal. The issues listed on the title page above, however, were remanded to the RO for additional development. In February 2013, the RO issued a supplemental statement of the case in which it continued the denial of the claims. The Board has recharacterized the claim for TDIU to clarify that consideration of such is limited to the period from June 20, 2005, until August 12, 2011. In particular, during the pendency of the appeal, in December 2012, the RO granted several claims for service connection. As a result of that action, since August 12, 2011, his combined disability evaluation for compensation was 100 percent. In addition, the RO granted entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). As a result of the assignment of a 100 percent combined disability and the granting of entitlement to SMC under 38 U.S.C.A. § 1114(s), the Veteran cannot receive additional compensation based on the claim for TDIU. Thus, for the period since August 12, 2011, the issue of entitlement to TDIU issue is moot. See generally Bradley v. Peake, 22 Vet. App. 293-294 (2008). The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. Finally, in the July 2011 decision, the Board referenced two claims that the Veteran filed that had not been adjudicated by the RO. Specifically, it noted pending claims to reopen service connection for a left shoulder disorder and a claim for service connection for a dental disability. These claims are once again referred to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. A low back and spine injury was not shown in service. Degenerative joint disease was not shown for many years after discharge. The current low back and spine disorder is not related to any injury during or event of active service. 2. Residuals of hepatitis C are not etiologically related to active service. 3. Residual scarring of the shoulders and head are not shown. 4. For the period from June 20, 2005, until August 12, 2011, the Veteran's service-connected disabilities preclude him from securing and following some form of substantially gainful employment. 5. In an unappealed January 2002 decision, the RO denied service connection for a right shoulder disorder; evidence received since the January 2002 decision is new but not material, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A low back and spine disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307 (2012). 2. Residuals of hepatitis C were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307 (2012). 3. Residual scars of the shoulders and head were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307 (2012). 4. For the period from June 20, 2005, until August 12, 2011, the criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1-4.16 (2012). 5. The January 2002 decision that denied service connection for a right shoulder disorder is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.1103. 6. The evidence submitted since the January 2002 is not new and material and the claim of entitlement to service connection for a right shoulder disorder is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with degenerative joint disease of the back. Degenerative joint disease is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). On the other hand, hepatitis C and residual scarring are not listed as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Service connection may also be established with certain chronic diseases, including degenerative joint disease, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. On the other hand, neither hepatitis C nor residual scarring are listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply. Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this decision, the Board has considered the lay evidence as it pertains to the issues. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Back and Spine Disorder The Veteran attributes a current low back and spine disorder to a injury in service when he was struck by an armored personnel carrier (APC) hatch. He alleges that he was knocked unconscious and almost died but did not receive medical attention following the injury. Instead, he alleges, he was discharged from service. Service treatment and service personnel records do not reference any hatch injury in service or show treatment for a back or spine complaints. On his service separation examination, dated in January 1980, the Veteran reported a history of recurrent low back pain; however, a physical examination of the spine and musculoskeletal structures was normal. His service personnel records indicate that he was released from active duty for the convenience of the government due to his unsuitability for military service. In November 1980, the Veteran filed a claim in which he sought service connection for, among others, a back condition that he alleged was secondary to a fall from a tank in service. No medical evidence was submitted and in January 1981 the RO denied the claim. The claim was denied again in October 1997, December 1999, January 2001, and January 2002. In July 2011, the Board reopened the claim and remanded it for further development. During a May 2001 VA examination, the Veteran reported that he was hit by an APC hatch in service and knocked unconscious. The examiner noted that he had normal physical examination findings with only subjective complaints of current back pain. An x-ray was normal. A November 2002 x-ray revealed osteoporosis and degenerative changes of the thoracic spine. A 2004 x-ray revealed mild degenerative joint disease of the lumbosacral spine. A November 2008 x-ray revealed mild retrolisthesis at L5-S1 and mild degenerative changes confined to the L4/L5 and L5/S1 levels. In an August 2011 VA examination, the Veteran recounted a hatch accident in service. He described daily low back pain, without flare-ups. He also described stiffness, muscle spasms, and decreased motion. During physical examination, the examiner wrote that the Veteran amplified his symptoms, making it difficult for the examiner to assess his limitation of motion. For instance, he was unable to walk on heels and toes in the examination room without moaning and limping, but was observed walking without any impairment in gait outside of the examination room. Based on a history, physical, and review of the claims file, the examiner opined that the current lumbar spine condition was less likely than not related to any condition noted in service. The examiner noted that the x-ray from 2001 was within normal limits while the 2008 x-ray showed mild degenerative changes. The examiner reasoned that this suggested that the current disability was more likely the result of the aging process. The examiner also noted due to the absence of treatment of any chronic low back condition in service and his current complaints of pain throughout his body did not suggest that the current disability was related to service. The Board has considered the relevant lay and medical evidence but finds that the preponderance of the evidence is against the claim. First, the evidence does not show a chronic disease, such as arthritis, in service or within the first post service year. Moreover, the one reference in the service treatment records to low back pain does not suggest arthritis so as to cause legitimate question of the existence of a chronic disease. In this respect, the Board finds it significant that despite the report of low back pain, no disability was found upon service separation. As such, the presumptive service connection provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 are not for application. The Board further finds that service connection for a low back disorder is not warranted on a direct basis. In short, while the Veteran has a current low back disability, manifested by mild degenerative joint disease of the lumbosacral spine, the weight of the probative evidence is against a finding that it is related to an injury in service. While the Board acknowledges that the Veteran is service-connected for several disabilities related to an APC hatch injury in service, the Board cannot ignore the fact that the service treatment records do not include any reference to a hatch injury, let alone any resulting low back symptomatology. This is particularly significant in light of his allegations that the injury rendered him unconscious. An injury of such severity would typically be noted in the service treatment records. Here, because it was not, the Board does not find his statements describing the incurrence of an injury in service credible. In addition, the only competent medical opinion evidence is against the claim. The Board affords significant probative weight to the August 2011 VA examination opinion. The examiner considered the Veteran's lay statements but noted that he was magnifying his current symptoms. The examiner also considered the lack of notation of any chronic low back in the service treatment records. Further, the examiner found it significant that the 2001 x-ray of the spine was normal. In sum, because the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the Veteran's favor, and, accordingly, the appeal is denied. Hepatitis C The Veteran claims that hepatitis C was incurred as the result of inoculations received upon entry onto active service. In other records, he describes a history of receiving blood transfusions during service following an injury when an APC hatch struck him in the head. While the record shows a current diagnosis of hepatitis C, his service treatment records do not reveal symptoms or findings of hepatitis C. Additionally, hepatitis C was not diagnosed until approximately 20 years after service discharge. Moreover, while his service treatment records include various inoculation records, they do not show that he had any unusual reactions to the vaccines nor do they show that he received blood transfusions while in service. Thus, there is no probative evidence showing incurrence of hepatitis C or symptoms of such in service or within a short time following service discharge. Nevertheless, the Board acknowledges that service connection may be established if it can be shown that the current disability is etiologically related to service. Here, however, the weight of the competent and probative evidence is against such a finding. The VA examiner in August 2011 reviewed the claims file and took a personal history. At that time, the Veteran denied any blood transfusions in service but described two tattoos that he received in service. The examiner stated that there was "no possibility" that the Veteran got hepatitis C in service. The examiner reasoned that hepatitis C was diagnosed 20 years after the Veteran left service. The examiner reflected that if hepatitis C was contracted as a result of exposure to an air gun in service, symptoms would have been present much sooner. There is no competent medical opinion evidence in support of the claim. The Board has considered the Veteran's lay opinion that hepatitis C was incurred in service. The Board affords his opinion low probative value for several reasons. First, he has not described continuity of hepatitis C symptoms since service. In addition, his statements describing risk factors for hepatitis C is inconsistent. For instance, he reports receiving a blood transfusion in service but then specifically denies such during the VA examination. Moreover, 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, hepatitis C, 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). Accordingly, because the preponderance of the evidence is against the claim, the appeal is denied. Scars of the Shoulder and Head The Veteran seeks service connection for scars of the shoulders and head. He states that the conditions are residuals of an injury that occurred in service when an APC hatch struck him in the head. He alleges that the force of the blow caused him to be knocked unconscious. The Board has reviewed the record but finds that the evidence does not show a current disability manifested by scars of the shoulders or the head. For instance, a VA physical examination in January 2000 included a normal examination of the head. No scars were noted. VA outpatient treatment records in the years that followed show treatment for multiple service-connected and nonservice-connected disabilities, but do not include findings of a shoulder or head scar disability. They do reference other injuries to the head including physical abuse when the Veteran was a child. For example, during a neuropsychological evaluation in February 2001, he reported suffering a head injury during service when a heavy metal cargo hatch hit him on the head and knocked him unconscious. His sister reported that their father and brother "horribly abuse[d]" the Veteran and "beat him all the time, punching him in the head and knocking him into the wall." The beatings were so severe that he was hospitalized at least three times, and once he was beaten unconscious and left for dead. In its July 2011 Remand, the Board determined that an examination was required to obtain evidence as to whether the Veteran had a current disability manifested by scars to the shoulders and head. An examination was conducted in August 2011. The examination, however, did not reveal any currently disabling scars to the shoulders or head. At that time, he reported the history of injury in service, but did not describe any symptoms related to any scars. A physical examination revealed two possible scars on the forehead. Neither, however, was painful, nor did they result in any skin breakdown. They were superficial, not deep, and did not result in any inflammation, edema, or keloid formation. They did not result in any tissue loss or cause any gross distortion or asymmetry. "Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see 38 U.S.C. § 1110. Assuming, for purposes of argument, that the forehead scars do constitute a disability, the weight of the evidence is against a finding that they are due to the hatch injury during service. In this respect, the Board affords significant probative weight to the August 2011 VA examiner's opinion that the scars were less likely related to service. The examiner provided an analysis, noting that the service treatment records were silent as to the finding of any scars on service separation examination and further noting that the forehead scars are not of the type that would be associated with an injury that resulted in loss of consciousness. Thus, even if he has a current scar disability, it is not shown to be related to service. Accordingly, the criteria for service connection have not been met and the appeal is denied. TDIU June 20, 2005, to August 12, 2011 Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341 , 4.16, 4.19 (2012). The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that a claim for entitlement to TDIU is a rating theory and "not a separate claim for benefits." See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, in October 2006, the Veteran filed his claim seeking entitlement to TDIU. In December 2012, the RO granted service connection for several disabilities, including major depressive disorder, rated as 50 percent disabling since June 20, 2005, and 100 percent disabling since August 12, 2011; traumatic brain injury, rated as 0 percent disabling since June 20, 2005, and 40 percent disabling since August 12, 2011; headaches, rated as 30 percent disabling since June 20, 2005; tinnitus, rated as 10 percent disabling since August 12, 2011. In addition, the RO granted basic eligibility for Dependents' Educational Assistance and entitlement to special monthly compensation based on housebound criteria being met since August 12, 2011. For the period since August 12, 2011, the claim for TDIU is moot since the Veteran is already receiving the maximum benefit and the award of TDIU would not result in additional compensation. Bradley v. Peake, 22 Vet. App. 293-294 (2008). For the period from June 20, 2005, to August 12, 2011, the Veteran had multiple service-connected disabilities with two rated at 40 percent or more (major depressive disorder and residuals of traumatic brain injury) with sufficient additional service-connected disability to bring the combination to 70 percent. Therefore, the service-connected disabilities meet the percentage rating standards for TDIU. See 38 C.F.R. § 4.16(a). The Board must now consider whether the evidence reflects that his service-connected disabilities render him unable to obtain and sustain gainful employment. For the period from June 20, 2005, to August 12, 2011, the evidence consists of VA outpatient treatment records, the results of VA examinations, and the Veteran's hearing testimony before the undersigned. VA outpatient treatment records indicate that he has a high school education and last worked in 1999 as a maintenance man. They show treatment for psychiatric disabilities including post-traumatic stress disorder, schizophrenia, major depressive disorder, and chronic anxiety. The evidence reveals that he is unable to work as a result of his service-connected disabilities. In particular, in an October 2006 letter, the Veteran's treating psychiatrist stated that the Veteran suffered from chronic anxiety and depression secondary to the hatch injury in service. In the psychiatrist's opinion, he was "unemployable." That same psychiatrist, in a November 2008 treatment note stated that the Veteran had been unemployed for the past 15 years and could not continue to work because of anguish and fear of getting hurt. The psychiatrist assigned a Global Assessment of Functioning score of 39, which is indicative of major impairment in areas such as work, or school, family relations, judgment, thinking, or mood. Finally, during the hearing before the undersigned, he reported that he had not worked in 12 to 15. In sum, the evidence reveals that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. As such, for the period from June 20, 2005, to August 12, 2011 the criteria for TDIU have been met. New and Material to Reopen a Right Shoulder Disorder The Veteran seeks to reopen a claim of entitlement to service connection for a right shoulder disorder. This matter was previously remanded in July 2011 so that he could be provided particularized notice pertaining to claims to reopen. Notice was provided by the RO in December 2012. As such, the Board can review the claim. Service treatment records do not reveal findings of any right shoulder disorder. In November 1980, the Veteran filed an original claim seeking service connection for several disabilities that he alleged were due to an injury caused by striking his head on an APC hatch in service. He did not describe any right shoulder disorder. In a March 2000 application, however, he alleged that the hatch injury in service resulted in a current shoulder disorder. In January 2001, the RO denied the claim. In doing so, the RO found no evidence of a shoulder disorder in service. In January 2002, following the receipt of VA outpatient treatment records the RO again denied the claim. The RO noted that there remained no evidence showing a right shoulder condition in service. The Veteran filed a notice of disagreement with that determination. In August 2003, the RO issued a statement of the case, setting the forth reasons for its decision. The Veteran, however, did not file a substantive appeal. As such, the January 2001 and January 2002 decisions are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. In addition, during the one-year period following the RO decision, no new and material evidence was received requiring readjudication of the claim. See Bond v. Shinseki, 659 F.3d 1362 (2011) (holding that VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.). A claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim, which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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). A determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court has held that 38 C.F.R. § 3.156 "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." Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, in October 2006, the Veteran submitted a statement in which he again claimed entitlement to service connection for a shoulder disorder. He submitted additional VA outpatient treatment records but they do not show treatment for a right shoulder disorder. In May 2007, the RO denied reopening the claim for service connection for a right shoulder condition. He submitted a notice of disagreement stating that he had a disability ever since an injury in service. On his substantive appeal, he stated that a hatch injury in service caused a current right shoulder disorder. An August 2008 VA outpatient treatment records notes that the Veteran has pain in the right shoulder that is "due probably to cervical radiculopathy." During the hearing before the undersigned, he testified that when the hatch hit him in the head during service, he was knocked unconscious and had to be brought "back to life." An August 2010 VA outpatient treatment records states that he has decreased range of motion of the cervical spine and right shoulder secondary to myofascial pain syndrome of the cervical spine with chronic right cervical radiculopathy associated with multilevel spondylotic and disc degenerative changes. In August 2011 the Veteran underwent a VA examination of the spine. The report includes the Veteran's assertions describing the hatch injury in service. It did not include any orthopedic findings, however, with respect to any right shoulder condition. It did include an opinion as to the etiology of a low back disability, however, the opinion was against the claim. The Board has reviewed the record but finds that new and material evidence has not been received sufficient to reopen the claim. Here, the Veteran's lay contentions describing a hatch injury in service were previously considered by the RO. Thus, the evidence is not new. In addition, while he has supplied numerous VA outpatient treatment records which show a current right shoulder disorder; those records do not indicate that the disability originated in service. Thus, while the evidence is new, it does not trigger VA's duties to assist by way of obtaining a VA examination. Finally, while the Veteran alleges that a right shoulder disorder is secondary to a neck or cervical disorder, he is not service-connected for a neck or cervical disorder. As such, the mere allegation of another theory of entitlement to service connection is insufficient to reopen the previously denied claim. See Velez v. Shinseki, 23 Vet. App. 199 (2009)(new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory). Finally, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran was provided with notice of what types of information and evidence were needed to substantiate his claims in the November 2006 letter and also was provided with notice of the types of evidence necessary to establish a rating and effective date for the disabilities on appeal. This notice letter preceded the initial adjudication of the claims. For claims to reopen, such as the right shoulder claim, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). This was accomplished in a December 2012 letter. The claim was thereafter readjudicated, most recently in a February 2013 supplemental statement of the case. The Board notes that the Veteran's TDIU claim is granted herein. Any deficiency with regard to VCAA for the issue of entitlement to TDIU is harmless and non-prejudicial. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished relative to the claims adjudicated therein, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. In particular, the Veteran reported that he was in receipt of "SSI" benefits. These are not Social Security disability compensation benefits. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Here, however, the RO contacted SSA but was advised that it had no medical file on record. In addition, the Board finds that there has been substantial compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In addition to sending a new notice letter on the claim to reopen service connection and inquiring as to the availability of SSA records, the RO was instructed to schedule several VA examinations. As discussed below, examinations were conducted and those examinations are considered adequate for rating and decisional purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Nothing further was required. Finally, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court of CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the RO hearing officer or Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned VLJ identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims decided herein. ORDER Service connection for a low back and spine disorder, diagnosed as degenerative joint disease, is denied. Service connection for residuals of hepatitis C, claimed as a liver disorder, is denied. Service connection for residual scars of the shoulders and head is denied. A TDIU for the period from June 20, 2005, to August 12, 2011, is granted, subject to the law and regulations governing the payment of monetary benefits. In the absence of new and material evidence, the request to reopen the previously denied claim for service connection for a right shoulder disorder is denied. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs