Citation Nr: 1334006 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-36 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for right shoulder disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for low back disability. 3. Whether new and material evidence has been received to reopen a claim of service connection for left leg disability. 4. Whether new and material evidence has been received to reopen a claim of service connection for right leg disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1962 to December 1982. These matters come before the Board of Veterans' Appeals from a November 2009 rating decision, which continued a denial for service connection for right shoulder, low back, and bilateral leg disabilities based on no new and material evidence. The Veteran's notice of disagreement was received in June 2010, a statement of the case was issued in August 2010, and a substantive appeal was received in August 2010. A hearing was held in October 2011. The underlying service connection issues are being REMANDED to the RO (under a merits analysis) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action, on his part, is required. FINDINGS OF FACT 1. The RO denied service connection for right shoulder disability in February 2006. The Veteran filed a notice of disagreement and a statement of the case was issued in January 2007; however, the Veteran did not perfect his appeal, not was new and material evidence received in the year following that adjudication. 2. The RO denied service connection for low back and bilateral leg disabilities in July 2008. The Veteran was notified of these decisions at that time. He did not file a notice of disagreement, nor was new and material evidence received within one year. 3. Certain new evidence received since the February 2006 rating decision in connection with the claim for service connection for right shoulder disability relates to an unestablished fact necessary to substantiate the claim. 4. Certain new evidence received since the July 2008 rating decision in connection with the claim for service connection for low back disability relates to an unestablished fact necessary to substantiate the claim. 5. Certain new evidence received since the July 2008 rating decision relates to an unestablished fact that is necessary to substantiate the bilateral leg disabilities claims. CONCLUSIONS OF LAW 1. The February 2006 and July 2008 rating decisions are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence has been received since the February 2006 rating decision to reopen the claim of entitlement to service connection for right shoulder disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. New and material evidence has been received since the July 2008 rating decision to reopen the claim of entitlement to service connection for low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. New and material evidence has been received since the July 2008 rating decision to reopen the claims of entitlement to service connection for right and left leg disabilities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria The claim for service connection for right shoulder disability was originally denied in a February 2006 rating decision on the basis that this disability was not incurred in or aggravated during his period of military service, or during the one year following separation from service. Although the Veteran filed a notice of disagreement and a statement of the case was issued, he did not perfect his appeal. Moreover, no new and material evidence was received and not adjudicated within one year of the February 2006 rating decision. Accordingly, that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The claims for service connection for low back and bilateral leg disabilities were originally denied in a July 2008 rating decision on the basis that low back disability was not incurred or aggravated during service and on the basis that bilateral leg disabilities were not currently diagnosed and also not incurred or diagnosed during service, or during the one year following separation from service. The Veteran did not file a notice of disagreement. Moreover, no new and material evidence was received within one year of the July 2008 rating decision. Accordingly, that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In August 2009, the Veteran filed to reopen his right shoulder, low back, and bilateral leg disabilities claims for service connection. A November 2009 rating decision denied these claims, finding there was not new and material evidence. The Veteran timely filed a notice of disagreement and the present appeal ensued. A final decision can be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The underlying claims are ones for service connection. It is therefore appropriate to note at this point that applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, for Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). New and Material Evidence Evidence received in connection with the Veteran's original claim for service connection for right shoulder disability included service treatment records, private treatment records noting he underwent surgery for a torn rotator cuff, and a VA examination report, which listed a diagnosis of mild degenerative joint disease of the right shoulder, and included an opinion that this disability was less likely than not related to service, to include a notation of bursitis in service. Evidence received since the February 2006 denial of the right shoulder claim includes VA and private treatment records noting complaints and treatment for right shoulder pain, and the Veteran's statements and testimony alleging a right shoulder disability as due to service. Although some of this evidence is merely cumulative in the sense that it just shows continuing treatment for right shoulder complaints (a fact already known by the RO at the time of the February 2006 decision), the Board finds certain sworn testimony by the Veteran and his spouse to arguably be new and material under the liberal standard established under the Shade judicial holding. Specifically, the Veteran and his spouse testified that the Veteran continued to have right shoulder problems when he began working at a factory in 1982 and that he saw a doctor for the right shoulder at that time. It does not appear that these facts (presumed to be credible under the new and material analysis) were known to the RO at the time of the February 2006 denial. To this extent, the hearing testimony constitutes new and material evidence to reopen the right shoulder disability claim. Turning to the low back issue, evidence of record at the time of the July 2008 denial included service treatment records, VA and private treatment records noting complaints of low back pain and noting that he underwent a laminectomy. VA treatment records also included a July 2009 MRI report, which revealed degenerative stenosis/degenerative joint disease of the lumbar spine. Evidence received since the July 2008 rating decision includes VA and private treatment records noting low back complaints and the Veteran's statements and testimony alleging low back disability as due to service. Certain testimony from the Veteran's spouse regarding her first hand knowledge of continuing low back complaints by the Veteran since service is again arguably new and material evidence under Shade. The low back disability claim is therefore also reopened. With respect to the Veteran's claims for service connection for left and right leg disabilities, the Board also finds that there is new and material evidence sufficient to reopen these claims. It appears that the Veteran's original May 2008 claim for service connection for left and right leg disabilities was based in large part on his assertions that such disabilities were caused or aggravated by his claimed low back disability. Now, in connection with his current request to reopen, he appears to have set forth a new contention to the effect that his left and right leg disabilities are due to his service-connected right pelvis, right femur disability. See October 2011 hearing transcript. Under the low standard set forth by the Court in Shade, the Board finds that the new assertions by the Veteran do constitute new and material evidence. The claims for service connection for right and left leg disabilities are reopened and are addressed further in the remand below. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the all of the claims are being reopened at this time. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). It is anticipated that any VCAA deficiencies will be remedied by the actions directed by the Board in the following remand. ORDER New and material evidence has been received to reopen the claims of service connection for right shoulder disability, for low back disability, for left leg disability, and for right leg disability. The appeal is granted to this extent, subject to the following remand. REMAND In view of the reopening of the claims, further development is necessary to ensure that VA's duty to assist the Veteran is fully met. At the October 2011 Board hearing, the Veteran and his spouse indicated that the Veteran had right shoulder problems when he began working at a factory in 1982 shortly after his discharge from service. The Veteran further testified that he saw a private doctor at that time. Appropriate action is necessary to request detailed information from the Veteran to allow for VA action to obtain any available records from the factory and the private doctor referred to at the hearing. In light of the reopening of the claims, the Board also believes that the duty to assist now requires VA examinations with appropriate nexus opinions. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the Veteran and request that he identify and furnish information about and relevant medical treatment he may have received at the factory and by the private doctor beginning in 1982 as he testified to at the Board hearing. The RO should take appropriate follow up action to request relevant records based on any information which the Veteran provides. 2. The Veteran should be scheduled for an appropriate VA right shoulder examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated tests should be conducted. Any current right shoulder disability should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that any current right shoulder disability is causally related to the right shoulder symptoms noted during service? A complete rationale for all opinions should be provided. 3. The Veteran should be scheduled for an appropriate VA examination of the low back, right leg and left leg. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated tests should be conducted. Any current disabilities of the low back, right leg, and left leg should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that any current low back disability is causally related to service? b) Is it at least as likely as not (a 50 percent or greater probability) that any current low back disability is proximately due to or caused by the service-connected postoperative residuals of fracture of the right pelvis and right femur? c) Is it at least as likely as not (a 50 percent or greater probability) that any current low back disability is proximately due to or caused by the service-connected postoperative residuals of fracture of the right pelvis and right femur? d) Is it at least as likely as not (a 50 percent or greater probability) that any current right and/or left leg disability is causally related to service? e) Is it at least as likely as not (a 50 percent or greater probability) that any current right and/or left leg disability is proximately due to or caused by the service-connected postoperative residuals of fracture of the right pelvis and right femur? f) Is it at least as likely as not (a 50 percent or greater probability) that any current right and/or left leg disability is proximately due to or caused by the service-connected postoperative residuals of fracture of the right pelvis and right femur? A complete rationale for all opinions should be provided. 4. After completion of the above and any additional development which the AMC/RO may deem necessary, the issues on appeal should be readjudicated (to include a secondary theory of service connection as appropriate). The RO should issue an appropriate supplemental statement of the case and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. The appellant 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs