Citation Nr: 1328300 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-13 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disability. 2. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain. 3. Entitlement to a disability rating in excess of 20 percent for residuals of dorsal spine compression fractures of D11 and D12. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issues of entitlement to service connection for a right shoulder disability, a disability rating in excess of 20 percent for lumbosacral strain, and a disability rating in excess of 20 percent for residuals of dorsal spine compression fractures are REMANDED to the RO. FINDINGS OF FACT 1. An unappealed April 2003 rating decision declined to reopen the Veteran's claim for service connection for a right shoulder disability. 2. The evidence received since the April 2003 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The April 2003 rating decision denying the Veteran's claim of entitlement to service connection for a right shoulder disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). 2. New and material evidence has been received sufficient to reopen the claim of service connection for a right shoulder disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2012). A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2002); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2012); Smith v. West, 12 Vet. App. 312 (1999) (if the evidence is new but not material, the inquiry ends and the claim cannot be reopened.) To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether to reopen a claim, the credibility of newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999); 38 U.S.C.A. § 5103A (West 2002). Regardless of what the RO has decided, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claim of entitlement to service connection was first denied in a February 1996 rating decision. In that decision, the RO found that the claim for service connection for a right shoulder condition was not well grounded, and the RO specifically noted that the evidence failed to show a disability for which compensation could be established. The Veteran did not appeal that decision, and it became final. The Veteran's claim of entitlement to service connection for residuals of a low back disability was last finally denied in an April 2003 rating decision, which found that no evidence had been submitted since the date of the last final denial. The Veteran did not timely disagree with that decision, and the decision became final. The Board must first determine if new and material evidence has been submitted since the time of the April 2003 final decision. 38 U.S.C.A. § 5108 (West 2002). The evidence added to the record includes, among other evidence, a January 2007 MRI report concerning the Veteran's right shoulder stating "consider impingement syndrome." That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly submitted evidence, the Veteran's previous claim for service connection was denied because the RO found no evidence of a current disability. The new evidence is relevant to establishing the presence of a current disability. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, the new evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). Accordingly, the Board finds that the additional evidence is also material. As new and material evidence has been received, the claim for service connection for a right shoulder disability is reopened. To that extent only, the claim is allowed. ORDER The claim for service connection for a right shoulder disability is reopened, and the appeal is allowed to that extent only. REMAND Having reopened the Veteran's claim for service connection for a right shoulder disability, the Board must now determine whether the reopened claim may be granted . The Board finds that further development of the record is needed. Additionally, a remand of the Veteran's claims of entitlement to a disability rating in excess of 20 percent for lumbosacral strain and a disability rating in excess of 20 percent for dorsal spine compression fracture residuals is warranted. With respect to the Veteran's claim for service connection for a right shoulder disability, VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has arguably satisfied each of these elements. A January 2007 MRI report suggests that the Veteran may have impingement syndrome of the right shoulder. The Veteran was involved in an in-service motor vehicle accident. No VA examiner has opined as to the likelihood of a relationship between the Veteran's right shoulder disability and his active duty service. Accordingly, the Board finds that the Veteran should be afforded a VA examination in order to determine the nature and etiology of his right shoulder disability. The present level of disability is of primary concern when entitlement to compensation has already been established and an increase in the disability rating is at issue. Francisco v. Brown, 7 Vet. App. 55 (1994). While a new VA examination is not warranted based solely upon the passage of time, VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate rating of the current disability. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran last received an examination of his spine in 2009, approximately four years ago. In July 2013, the Veteran's representative stated that the Veteran's spine condition had degraded over the pendency of the appeal. Accordingly, an additional VA examination of the Veteran's spinal disability is necessary to accurately evaluate the current severity of his disability. The Board further notes that in November 2012 and July 2013, the Veteran's representative submitted statements directly to the Board without a waiver of review by the agency of original jurisdiction in the first instance. The RO should review that evidence. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the current severity of his spine disability, to include all neurological or radicular manifestations of the service-connected spinal disabilities. The examiner must review the claims file and must note that review in the report. Any indicated evaluations, studies, and tests deemed necessary should be accomplished. 2. Then, schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the nature and etiology of a right shoulder disability. All indicated tests and studies must be performed. The examiner must review the claims file and must note that review in the report. Following a review of the Veteran's claims file, physical examination of the Veteran, and consideration of the Veteran's statements, the examiner should describe the nature of the Veteran's right shoulder disability in detail, and address whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's right shoulder disability had its onset in service or is otherwise related to service, to include a motor vehicle accident during service. The examiner should assume that the Veteran is competent to discuss his in-service experiences. 3. Then readjudicate the claims, to include consideration of entitlement to a separate disability rating based on neurological symptoms associated with the spinal disability, and consideration of all newly submitted evidence. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters that 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 or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs