Citation Nr: 1325803	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-15 446	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

Whether there is new and material evidence to reopen a claim of entitlement to service connection for residuals of bilateral (left and right) shoulder injuries and, if there is, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel



INTRODUCTION

The Veteran served on active duty from October 1976 to October 1979.

He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which determined there was not new and material evidence since a prior final and binding decision and, therefore, denied his petition to reopen his claim of entitlement to service connection for bilateral shoulder injuries.

The Board, however, is reopening this claim.  But rather than immediately readjudicating this claim on its underlyling merits, the Board instead is remanding this reopened claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.


FINDINGS OF FACT

1. In October 2002, the RO denied the Veteran's original claim of entitlement to service connection for a bilateral shoulder disability, and he did not appeal. 

2. He since has submitted additional evidence, however, which relates to an unestablished fact necessary to substantiate this previously denied claim. 


CONCLUSIONS OF LAW

1. The October 2002 RO rating decision denying service connection for a bilateral shoulder disorder is a final and binding determination.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302 (2013).

2. But there is new and material evidence since that decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record:  (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf.  A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so-called "fourth" requirement that VA specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen a previously denied and unappealed claim, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence explaining the exact reasons the claim was previously denied so the claimant will have opportunity in response to provide the type of evidence and information needed to overcome the prior shortcomings of his claim.  See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).

Regarding this particular petition at issue to reopen this claim of entitlement to service connection for a bilateral shoulder disorder, the Board is reopening this claim and then remanding, rather than immediately deciding, the underlying claim on the merits for further evidentiary development.  Hence, a conclusive determination as to whether the VCAA's duties to notify and assist were satisfied is not required at this juncture and may be deferred pending completion of the additional claim development on remand and future readjudication of the reopened claim on its underlying merits.

In an earlier October 2002 rating decision, the RO initially considered and denied the Veteran's claim of entitlement to service connection for a bilateral shoulder disorder due to a then lack of evidence showing this claimed condition was the result of disease or injury incurred or aggravated during his military service.  The RO observed in this regard the absence of any documentation of a relevant injury in service.  He did not file a timely Notice of Disagreement (NOD) with that decision, to initiate an appeal of it, and hence it became final and binding based on the evidence then of record.  See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302.

When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

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).  For the purpose of determining 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).  See also Evans v. Brown, 9 Vet. App. 273, 283 (1996).

The basis of denial originally as mentioned was the absence of a causal nexus between this claimed disorder and the Veteran's military service, including especially any injury during his service.  The element of causation is indispensable to establish service connection.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See also Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999).

The Veteran since, however, has provided a November 2005 supporting lay witness statement from a fellow service member, attesting that he recalled an incident during their service in which the Armored Personnel Carrier (APC) the Veteran was driving was hit by a tank, and afterwards he complained of shoulder pain.  This newly-received statement contributes to the evidence as a whole on the subject of whether there was precipitating injury in service, and thereby presents a reasonable possibility of substantiating the previously deficient element of a causal nexus to service.

Accordingly, new and material evidence has been presented to reopen this claim for service connection for a bilateral shoulder disability.  But the readjudication of the claim on its underlying merits (meaning on a de novo basis) is being deferred pending completion of the additional development of this claim on remand.


ORDER

New and material evidence having been received, the claim for service connection for a bilateral shoulder disorder is reopened; the appeal to this extent is granted.



REMAND

In furtherance of the continuing development of this claim, the RO/AMC should undertake reasonable measures to obtain all treatment records associated with the Veteran's June 2005 award of disability benefits by the Social Security Administration (SSA).  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  VA is only obligated to obtain these SSA records, however, if they are potentially relevant to the Veteran's VA claim.  Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009),

Moreover, a VA Compensation and Pension examination is needed to determine whether the Veteran's currently diagnosed pathology referable to his shoulders is etiologically related to his military service, taking into consideration the aforementioned lay witness statement elucidating the likely circumstances of relevant precipitating injury in service, along with all relevant treatment records since discharge from service that may assist in demonstrating the requisite causal linkage to service.  See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013).

Accordingly, this claim is REMANDED for the following additional development and consideration:

1. Obtain copies of the SSA's administrative decision regarding the Veteran's claim for disability benefits with this other Federal agency, along with all medical records underlying the determination.  Associate all records received with his VA claims file so they may be considered in this appeal.

2. 
Schedule the Veteran for a VA compensation examination to determine the etiology of his claimed bilateral shoulder disability.  The claims folder must be provided to and reviewed by the examiner in conjunction with this requested VA examination.  All indicated tests and studies should be performed, and all findings should be set forth in detail.

The VA examiner is requested to provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's currently diagnosed bilateral shoulder disability is directly related or attributable to disease, injury or event during his active military service from October 1976 to October 1979 or, if involving arthritis, initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year, so meaning by October 1980.

This determination must be based on consideration of the objective medical evidence of record, as well as the Veteran's lay assertions (and supporting lay witness testimony in the way of the November 2005 "buddy" statement regarding a precipitating injury in service).  Also in providing this requested medical nexus opinion, the examiner must consider the January 2005 treatment summary of Dr. M.J.H. setting forth pertinent clinical history.  

It is most essential the examiner discuss the underlying rationale for all opinions expressed, if necessary citing to specific evidence in the file.  However, if the examiner cannot respond to the inquiries without resorting to mere speculation, he/she must so state but, more importantly, also explain why it is not feasible or possible to provide a responsive medical opinion - such as by indicating whether additional evidence or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another, the limits of medical knowledge have been exhausted, or whatever may be the case.

3.  Review the report of the examination to ensure it is responsive to the questions posed.  If not, take corrective action.  38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268, 271 (1998).  

4.  Then readjudicate this claim in light of this and all other additional evidence.  If this claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise him that the conducting of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  He is also advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655. 

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. 2013).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs