Citation Nr: 1319478 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 13-01 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for right shoulder disorder, to include osteoarthritis and residual tendinitis. 2. Entitlement to service connection for right knee disorder, to include osteoarthritis. REPRESENTATION Appellant represented by: Richard E. Geyer, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to May 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in November 2008 and July 2010, issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Baltimore, Maryland and Cleveland, Ohio, respectively. In April 2013, the Veteran testified at a hearing at the Board's office in Washington, DC, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been uploaded to Virtual VA. The Veteran submitted additional evidence directly to the Board at the above-referenced April 2013 hearing and again shortly thereafter. The first submission was accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). The second submission, although not accompanied by a waiver, includes facts and argument previously submitted by the Veteran. Therefore, there is no prejudice to the Veteran for the Board to proceed. During the April 2013 hearing, the Veteran's attorney argued that the case should not be characterized as a new and material evidence claim. The Board agrees. In October 2008, the RO sent the Veteran a letter asking for him to complete NA Form 13055 so that the RO could request that a thorough search be made for military medical records in support of his claim. This October 2008 letter specifically noted that the Veteran had one year from the date of the letter to submit evidence. The Veteran submitted the NA Form 13055 with a statement, which was received by the RO on November 24, 2008. The RO adjudicated the Veteran's claims on November 26, 2008, without considering the Form and accompanying statement. Subsequently, the RO acted on the NA Form and requested additional service records. It then adjudicated the Veteran's claims in a July 2010 decision. The Board has jurisdictional responsibility to determine whether a claim was properly addressed as an application to reopen versus a new claim for entitlement to service connection. See, e.g., Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). The Board does not find that these claims should be characterized as new and material evidence claims. The Veteran consistently responded to ongoing development by the RO. The RO prematurely adjudicated the Veteran's claim in November 2008 and then took further developmental steps immediately thereafter on its own accord. Therefore, the Board finds that the RO incorrectly characterized the Veteran's claim as new and material. 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). FINDINGS OF FACT 1. The evidence of record supports a finding that a relationship exists between the Veteran's current osteoarthritis and residual tendinitis of the right shoulder and his active duty military service. 2. The evidence of record supports a finding that a relationship exists between the Veteran's current osteoarthritis of the right knee and his active duty military service. CONCLUSIONS OF LAW 1. Osteoarthritis and residual tendinitis of the right shoulder was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Osteoarthritis of the right knee was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his shoulder and knee claims in February 2008. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claims below. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. For judicial economy, the Board will discuss the issues of entitlement to service connection for right shoulder and right knee disorders together below as both disorders are claimed to be from one accident during the Veteran's military service. Legal criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In essence, the Veteran asserts that he has current right shoulder and right knee disorders that had their onset in, or are otherwise related to an injury sustained during, his period of active duty service. In particular, the Veteran contends that in 1956, he was involved in a jeep accident that caused injury to his right knee and right shoulder. See the April 2013 hearing transcript, pages 4-13. It is undisputed that the Veteran has current right shoulder and right knee disorders-namely, osteoarthritis of the right knee and osteoarthritis and residual tendinitis of the right shoulder. See the Veteran's March 4, 2013 Disability Questionnaires completed by Dr. M; see also letter from Dr. S. date on October 14, 2010. As such, element (1) of the three-part test for service connection is indeed satisfied. With respect to element (2), in service disease or injury, the Veteran's service treatment records are fire-related and not available for review. Despite this, there are several pieces of evidence that the Veteran has submitted showing that he was in an accident in 1956. First, the Veteran provided testimony during the April 2013 Board hearing describing the jeep accident that occurred in 1956. The Veteran provided a photograph of the jeep that was allegedly damaged at the time of the accident. The Veteran further submitted a letter that he received after separation from his military service, which relieved him from pecuniary liability and responsibility for the accident during service. Although the letter does not specifically describe the accident, the Veteran provided credible testimony that this letter was referring to the 1956 jeep accident. See January 1957 letter from Headquarters, Seventh United States Army; see also April 2013 hearing transcript, page 10. The Veteran also submitted a certificate of safety that he received in January 1956 just prior to the jeep accident that recognized the Veteran's valuable contribution of driving 5,000 miles without an accident or traffic violation. See January 1956 Certificate of Safety. The Veteran also filed a statement by a fellow soldier, A.M., who was stationed in Furth, Germany, who remembers that the Veteran was in an accident in Furth while driving a GP (JEEP) military vehicle. See A.M. statement dated in November 2007. A.M. also remembers that the Veteran needed major medical treatment for his injuries following the accident. Id. The Veteran submitted a second letter from a fellow soldier, V.C. See V.C. statement date in November 2007. V.C. remembers speaking to the Veteran shortly after the accident happened. V.C. remembers that the Veteran reported that another soldier, A.M., was in the jeep with the Veteran when it crashed. V.C. also recalled the Veteran explaining to him that he had injured his right shoulder and right knee and was treated at the infirmary. Id. The Veteran also submitted a statement from his spouse. The Veteran's spouse reported that the Veteran always had aches and pains and that they were married in 1959. She explained that on one occasions they sought medical treatment for his swollen knee at which time, the treating physician noted that his knee problem was from a previous injury. See Statement from the Veteran's spouse dated in December 2007. The Veteran, his fellow soldiers, and his spouse are certainly competent to attest to observable symptoms, experiences, and witnessed events. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board finds no reason in the record to doubt the credibility of each of their recollections, especially in light of US Army letter. Indeed, the circumstances of his claimed in-service injury and his subsequent in-service treatment as described by the Veteran and his fellow soldiers are indeed plausible, as are the recollections of his wife who has been with the Veteran since soon after his separation from service. Based on all of the evidence listed above as a whole, the Board resolves all doubt in the Veteran's favor and finds that in-service injury to the right shoulder and right knee are in fact demonstrated. Shedden element (2) is therefore satisfied as well. With respect to crucial element (3), nexus or relationship, the Veteran submitted a statement by a physician, D.S. See letter from D.S. dated in October 2010. D.S. considered the Veteran's reported injury in service, reviewed the photograph of the damaged jeep from the 1956 accident, and reviewed statements from A.M., V.C. and the Veteran's spouse as well as the Veteran's private treatment physician, Dr. M. D.S. concluded that the Veteran's ongoing problems that he experiences with his right shoulder, including residuals shoulder tendinitis and pain, are with medical probability related to the Jeep accident of 1956. D.S. further found that the Veteran's current right knee injury with contusion and ongoing pain appears to be more likely than not related to the Jeep injury in 1956. Id. The Veteran also submitted a letter from his treating physician, Dr. M., who opined that it was likely as not that the Veteran's right shoulder and right knee disorders are linked to the 1956 jeep accident that the Veteran had consistently reported to the physician. See letter from G.M. dated in October 2010. The physician further noted that he had no other explanation for the Veteran's chronic pain involving the shoulder and knee other than the accident in 1956. The physician had treated the Veteran since 1989. The Board finds the opinions of the treating physicians to be highly probative on the issue of a nexus to service. The evidence of record demonstrates that the Veteran has consistently reported to his post-service treating physicians that he experiences ongoing pain and problems from his right shoulder and right knee. See April 2013 hearing testimony page 10-17. The opinions are well-reasoned and are not contradicted by the record. Therefore, in light of this evidence, the Board finds that Shedden element (3) is satisfied for both the shoulder and knee disorders. Therefore, the benefits sought on appeal are allowed. ORDER Service connection for osteoarthritis and residual tendinitis of the right shoulder is granted. Service connection for osteoarthritis of the right knee is granted. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs