Citation Nr: 1323519 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-03 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection by aggravation for the residuals of a preexisting right shoulder injury. 2. Entitlement to service connection by aggravation for the residuals of a preexisting right shoulder injury. WITNESSES AT HEARING ON APPEAL The Veteran and Ms. S. ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1976 to May 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the attorney of record withdrew representation of the Veteran. In July 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. At the hearing and on the record, the Veteran acknowledged that his attorney had withdrawn from the case and that he was proceeding with representation. The reopened claim of service connection by aggravation for the residuals of a preexisting right shoulder injury is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In a rating decision in April 1977, the RO denied service connection by aggravation for the residuals of a preexisting right shoulder injury; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. 2. The additional evidence since the final rating decision in April 1977 by the RO relates to an unestablished fact necessary to substantiate the claim of service connection by aggravation for the residuals of a preexisting right shoulder injury. CONCLUSION OF LAW The criteria to reopen the claim of service connection by aggravation for the residuals of a preexisting right shoulder injury have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim is reopened, which is the part of the appeal decided, further discussion of VCAA compliance is not necessary. REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural History and Evidence Previously Considered In April 1977, in a rating decision, the RO denied service connection by aggravation for the residuals of a preexisting right shoulder injury, because the evidence did establish that the preexisting injury was permanently aggravated by service. The Veteran was notified of the determination and of his appellate rights but did not appeal the RO's decision and new and material evidence was not received within one year from the date of notice of the rating decision. The rating decision became final by operation of law on the evidence of record. 38 C.F.R. §§ 3.104, 3.156. The evidence of record at the time of the rating decision in April 1977 consisted of the service treatment records and a report of VA examination. The service treatment records show that on entrance examination surgical repair of a separated right acromioclavicular joint was noted. In February 1976, a Medical Board Report shows that during recruit training the Veteran complained of right shoulder pain after slinging a sea bag over his shoulder. Conservative treatment had failed to relieve the pain. X-rays showed a healed resection of the distal clavicle. The pertinent findings were further tear of the coracoclavicular and acromioclavicular ligaments. A Physical Examination Board found the Veteran unfit for further duty, because of preexisting disability that was aggravated by service, which may or may not be permanent. The diagnosis was traumatic disruption of the coracoclavicular ligaments. The Veteran was subsequently administrative discharged from service because of the preexisting condition. After service on VA examination in March 1977, the Veteran complained of morning stiffness in the right shoulder, which improved with activity. The Veteran complained of pain only after playing basketball. The pertinent findings were no tenderness, swelling, or limitation of motion. Current Claim to Reopen In December 2009, the Veteran filed the current claim to reopen. As the Veteran's claim was received after the regulatory definition of new and material was amended in August 2001, the current regulatory definition of new and material evidence applies. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Additional Evidence and Analysis A previously denied claim of service connection may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The additional evidence presented since the rating decision in April 1997 consists in pertinent part of the Veteran's statements and testimony. VA records show that in January 2009 the Veteran stated he has had right shoulder pain since he reinjured his shoulder in service. In a statement in January 2010, the Veteran stated on entrance examination he was cleared for active duty and that the ligament tear in training aggravated the healed preexisting shoulder injury. In July 2012, the Veteran testified that he has had right shoulder symptoms since service. The Veteran is competent to describe symptoms of an injury, which is within the realm of the Veteran's personal experience. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). And the Veteran's statements and testimony about persistent right shoulder symptoms since service are presumed credible for the limited purpose of determining whether the evidence is new and material. And as the Veteran's statements and testimony are based on personal observation that statements and testimony are not beyond the Veteran's competency. As the Veteran's statements and testimony relate to an unestablished fact necessary to substantiate the claim, namely, evidence of a permanent increase in disability of a preexisting condition and as the lack of such evidence was the basis for the previous denial of the claim, the Veteran's statements and testimony are new and material evidence under 38 C.F.R. § 3.156. And the claim of service connection by aggravation of a preexisting right shoulder disability is reopened. ORDER As new and material evidence has been presented, the claim of service connection by aggravation for the residuals of a preexisting right shoulder injury is reopened, and, to this extent only, the appeal is granted. REMAND Although the Board has reopened the claim of service connection, the Veteran has the right to have the RO consider the claim on the merits in the first instance and as the evidence is insufficient to decide the claim further development is needed. Accordingly, the case is REMANDED for the following action: Afford the Veteran a VA examination to determine: a). Whether the Veteran currently has residuals of a surgical repair of a separated right acromioclavicular joint with resection of the clavicle, which preexisted service and, if so, b). Is it obvious that the Veteran's preexisting right shoulder disability was not permanently aggravated, when the Veteran slung a sea bag over his shoulder in 1976? In formulating the opinion, the VA examiner is asked to consider the following: Aggravation means a permanent worsening of the preexisting condition as contrasted to temporary or intermittent flare-ups of symptoms during service. A lack of aggravation means either: a). There is no increase in severity of the preexisting disability on the base of the evidence, pertaining to manifestations of the disability prior to, during, or subsequent to service; or, b). Any increase in disability during service was due to the natural progression of the preexisting condition. The Veteran's file must be made available to the VA examiner for review. 2. After the above development, adjudicate the claim of service connection by aggravation of a preexisting right shoulder injury, applying 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. If the benefit sought is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs