Citation Nr: 1324595 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-18 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for a right arm disability. 2. Entitlement to service connection for a right arm disability. 3. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from April 1978 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Portland, Oregon, Regional Office (RO). The March 2009 RO decision denied service connection for a right shoulder disability and declined to reopen a right elbow disability service connection claim. The Board has recharacterized the right elbow claim as a right arm disability claim on the title page. In April 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge; the transcript is of record. The issues of entitlement to service connection for a right shoulder disability and a right arm disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an April 2003 administrative decision, the RO declined to reopen the service connection claim for a right arm disability because new and material evidence had not been received; no appeal was perfected and that decision is now final. 2. Evidence added to the record since the April 2003 RO decision is new and material and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria to reopen the service connection claim for a right arm disability have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is reopening the service connection claim for a right arm disability and remanding the claim. This is a full grant of the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. A January 1987 RO decision denied the initial service connection claim for a right arm disability, finding no evidence that the preexisting disability was aggravated by service. The Veteran was notified of the decision and his appellate rights; however, he did not appeal the decision. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In respective February 1998 and April 2003 administrative determinations, the RO declined to reopen the right arm service connection claim, finding new and material evidence had not been received. The Veteran did not appeal either decision. Id. At his April 2013 Board hearing, the Veteran provided competent testimony that he did not have any right arm/elbow symptomalogy prior to enlistment, experienced the onset of symptoms in service, and that the symptoms have persisted since separation. This statement is presumed credible for the purpose of determining whether new and material evidence has been received. The Veteran's statements and testimony relate to an unestablished fact necessary to substantiate the claim and reopening is warranted. ORDER New and material evidence has been presented to reopen the service connection claim for a right arm disability and, to this extent, the appeal is granted. REMAND VA must provide the Veteran a VA examination related to his service connection claims for right arm and right shoulder disabilities on remand. The Veteran reports receiving regular right arm and right shoulder VA treatment and records generated since June 2010 must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of his right shoulder and right arm symptoms, including any possible relationship to military service. 2. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's right shoulder and right arm, dated since June 2010, specifically including those generated at the VA Medical Center located in Portland, Oregon. Any negative response(s) must be in writing and associated with the claims folder. 3. After the aforementioned development has been completed, schedule the Veteran for a VA orthopedic examination with an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must respond to the following: (A) Diagnose all right shoulder and right arm pathology present, if any, to include explicitly ruling in or excluding a diagnosis of multiple loose bodies of the right elbow. (B) As to each condition diagnosed, provide an opinion as to whether there is clear and unmistakable evidence (i.e., undebateable) that the disability: (i) existed prior to the Veteran's April 1978 enlistment into service and , if so; (ii) was not aggravated by military service or any incident therein. Note: Aggravation means a permanent worsening of the preexisting condition as contrasted to temporary or intermittent flare-ups of symptoms during service; it does not include any increase in disability due to the natural progression of the preexisting condition. (C) As to any right arm condition diagnosed which did not clearly and unmistakably exist prior to service, the examiner is to opine as to whether it is at least as likely as not (i.e., probability equal to or greater than 50 percent) that the disability: (i) had onset in service or within one year of separation; or (ii) is related to military service or any event therein. (D) As to each right shoulder condition diagnosed which did not clearly and unmistakably exist prior to service, the examiner is to opine whether it is at least as likely as not (i.e., probability equal to or greater than 50 percent) that the disability: (i) had onset in service or within one year of separation; (ii) is related to military service or any event therein; or (iii) was caused or aggravated by any right arm disability. The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements, his April 1978 enlistment examination, a March 1978 examination report, multiple June 1978 right elbow treatment records; the June 1978 Medical Board Proceedings report, etc.) and set forth a complete rationale for all findings and conclusions. All tests deemed necessary by the examiner must be performed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 4. Then, readjudicate the appeal. If either of the benefits sought remain denied, issue 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs