Citation Nr: 1334858 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 12-18 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 1946 to December 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which determined that new and material evidence had not been received sufficient to reopen the Veteran's previously denied claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery. A videoconference Board hearing was held at the RO in March 2013 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board observes that, in a September 2005 rating decision, the RO denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery. The Veteran did not perfect a timely appeal of this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). He also did not submit any statements relevant to this claim within 1 year of the September 2005 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a rating decision dated on August 30, 2005, and issued to the Veteran and his service representative on September 9, 2005, the RO denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery; although the Veteran timely disagreed with this decision, no appeal was perfected and this decision became final. 2. The evidence received since the August 2005 RO decision is either cumulative or redundant of evidence previously submitted in support of the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery and does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2005, rating decision, which denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery, is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. Evidence received since the August 2005 RO decision in support of the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in February and October 2010, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence demonstrating that he experienced additional left shoulder disability that was a result of his surgery in November 2002 and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA substantially has satisfied the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). These letters also defined new and material evidence, advised the Veteran of the reasons for the prior denial of the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery ("1151 claim") and noted the evidence needed to substantiate the underlying 1151 claim. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). Additional notice of the five elements of a service-connection claim was provided in the February and October 2010 VCAA notice letters, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support reopening the Veteran's previously denied 1151 claim. Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the February 2010 letter was issued to the Veteran and his service representative prior to the May 2010 rating decision which denied the benefits sought on appeal; thus, this notice was timely. There has been no prejudice to the Veteran and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issue as whether new and material evidence had been received to reopen the Veteran's 1151 claim. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative specifically asked the Veteran about the new evidence which had been submitted in support of his request to reopen the previously denied 1151 claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the VLJ asked questions to draw out the newly submitted evidence in support of the Veteran's request to reopen the previously denied claim, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be explained below in greater detail, because new and material evidence has not been received to reopen the Veteran's 1151 claim, an examination is not required. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. New & Material Evidence Claim The Veteran contends that new and material evidence has been received to reopen his previously denied claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery ("1151 claim"). He specifically contends that a private physician has related his current left shoulder disability to carelessness by his VA surgeon during the left shoulder surgery he had at a VA Medical Center in November 2002, entitling him to compensation under 38 U.S.C.A. § 1151. In August 2005, the RO denied the Veteran's 1151 claim. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013). The Veteran timely disagreed with this rating decision in May 2006; however, he did not perfect a timely appeal and the September 2005 rating decision became final. The Veteran also did not submit any statements relevant to this claim within 1 year of the September 2005 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie, 24 Vet. App. at 251-52. The Veteran's 1151 claim may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen his previously denied 1151 claim in statements on a VA Form 119 which was dated on November 13, 2009. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a) (2013). As relevant to this appeal, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. Id. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery, the evidence before VA at the time of the prior final RO decision in August 2005 consisted of the Veteran's VA treatment records, to include hospitalization reports at the time of his left shoulder surgery at a VA Medical Center (VAMC) in November 2002, a VA examination report dated in August 2005, the Veteran's private treatment records, and his lay statements. The RO noted that a review of the Veteran's November 2002 hospitalization records showed that, prior to surgery, he reported losing range of motion in the left shoulder and failing alternatives to surgery (including non-steroidal anti-inflammatory medications and injections, physical therapy, and whirlpool therapy). The RO also noted that the Veteran had left shoulder replacement surgery in November 2002 at a VAMC and was discharged after receiving maximum benefits from his hospital stay. The Veteran's private treatment records showed that, following surgery and his discharge from the VAMC, he developed a staph infection which was treated with antibiotics and reported experiencing continuous left shoulder joint pain. The RO noted further that, at his VA examination in August 2005, the Veteran reported that he took no medication for his left shoulder and had no other left shoulder injury. Following this examination, the VA examiner opined that there was no additional disability experienced by the Veteran as a result of the November 2002 left shoulder surgery. This examiner also opined that no additional disability resulted from a disease or injury or aggravation of an existing disease or injury as a result of the Veteran's November 2002 surgery. This examiner noted that bleeding and infection were accepted surgical risks for any operation. He also concluded that the Veteran's current functional impairment in the left shoulder was not caused by or a result of an incorrectly performed surgery. Thus, the Veteran's 1151 claim was denied. The newly received evidence includes a VA outpatient treatment record dated in February 2011, additional private treatment records, and his lay statements and March 2013 Board hearing testimony. On VA outpatient treatment in February 2011, the Veteran complained that "[h]is left shoulder is still bothering him." He rated his left shoulder pain as 8/10 on a pain scale "and has lost motion and use of his left [shoulder]/arm" and had "difficulty holding things." The Veteran "lives by himself and gets around by himself at home. He is starting to have difficulty with transferring in and out" of the bed and the bathtub. Physical examination showed he was in a "mobility scooter." The impressions included a history of left shoulder replacement. It was noted that the Veteran was a "poor surgical candidate" and had a history of left shoulder surgeries "with metal in the past." A review of the Veteran's claims file shows that he submitted additional private treatment records in support of his request to reopen the previously denied 1151 claim in May 2012. A review of these records shows that, on outpatient treatment with A.K.D., M.D., in December 2002, the Veteran was seen 10 days after his left total shoulder replacement surgery at a VAMC. The Veteran complained of constant left shoulder pain which he rated as 10/10 on a pain scale (or the worst imaginable pain), "night pain all the time," and severe post-operative bruising, swelling, and stiffness. It was noted that the Veteran was in a shoulder immobilizer "and has not moved his shoulder to any significant extent." His surgical staples remained in place. Physical examination showed "generally he appears to be in reasonably good spirits, all things considered." Physical examination of the left shoulder showed normal vascular and neurological examination, including intact nerves, "a great deal of bruising throughout the entire upper extremity, the left side, and to the left flank," a well-healed surgical incision with no sign of drainage or infection, and "some redness to the staple sides that is consistent with staple irritation...The bruising appears to be somewhat late stage bruising that is changing colors as appropriate for maturing hematoma." X-rays showed "an implant of a herniarthroplasty." It was noted that this implant "was place in good alignment down the axis of the shaft of the humerus and does not appear to have disrupted the greater tuberosity or lesser tuberosity." The diagnosis was status-post total left shoulder arthroplasty. Dr. A.K.D. concluded: At this point, it is not clear as to what extent his result is going to be. I think that it is in good position and his implant is in an acceptable enough position that we could rehabilitate from here. I do not think that there is anything at this juncture that would force our hand to do anything to revise what he has had done before and indeed it looks like he may very well have a reasonable result from this surgical procedure. In February 2003, Dr. A.K.D. stated that the Veteran was complaining of "having some pain as usual, but no fever, chills, or other symptoms. He says he has some increased sensation in the shoulder subjectively." The Veteran was "on all antibiotics." Physical examination showed a completely healed surgical wound, no drainage, intact neurological exam, "some sensation in the axillary nerve distribution distally," a normal vascular exam, pain with limited range of motion of the shoulder "including elevation to proximally 30 degrees." The impression was left shoulder resection arthroplasty with antibiotics "for the affected hemiarthroplasty." Dr. A.K.D. stated, "We are tentatively planning on revision of [the Veteran's] shoulder in late March. I hope to have him off antibiotics and proven to be infection free sometime around then." In March 2003, it was noted that the Veteran was "doing a little bit better on the whole. He is now ready for his surgery." Physical examination showed a normal vascular exam, a well-healed surgical incision, decreased sensation in the axillary nerve distribution, "some sensation intact on the median, radial, and ulnar nerve distributions," decreased motor function of the ulnar nerve and median nerve distally, and "quite a bit of stiffness in the hands." The impression was status-post resection arthroplasty affected hemiarthroplasty of the shoulder. Dr. A.K.D. stated that the Veteran would be scheduled "for a revision to a total shoulder arthroplasty with antibiotic cement." In May 2003, the Veteran's complaints included poor function of the entire left arm "secondary to distal weakness and immobility of the hand." He was no longer on antibiotics and "still wearing a sling for protection." Physical examination showed a fully-healed surgical incision with no signs of infection, intact axillary nerve sensation, intact distal sensation, 4/5 motor strength "diffusely throughout major group testing including C5-T1," and no signs of radicular weakness. X-rays showed "excellent position of total shoulder arthroplasty" with no evidence of loosening. The impressions included generalized complex regional pain syndrome (CPRS), diffused brachial plexopathy, severe functional limitation of the upper extremity, and status-post total shoulder arthroplasty "of a previously infected hemiarthroplasty. He seems to be progressing well as far as infection. There are no signs of recurrence and he has good implant positioning." Dr. A.K.D. stated that the treatment plan was aggressive outpatient occupational therapy focused on CPRS treatment with total upper extremity conditioning. This clinician also stated: I told [the Veteran] to discontinue the sling and essentially throw it away so he has no more dependence on it. Use his arm as essentially normal as possible. His implant is doing extremely well from a surgical standpoint. These issues seem to be related to a generalized neurological weakness as well as poor psychological profile resulting in CPRS. Long-term disuse of the arm. VA x-rays of the left shoulder taken in August 2010 showed a partial left shoulder arthroplasty "without radiographic evidence of fracture or hardware loosening." On private outpatient treatment with M.H.F., M.D., in November 2010, the Veteran's complaints included left arm weakness since his most recent left shoulder surgery in 2003, cervical pain radiating to the shoulder and arm, neck stiffness, low back pain radiating to both legs, and numbness and tingling in both feet. A history of 3 left shoulder surgeries was noted. Physical examination showed he was wheelchair bound, "he cannot lift the left arm," no atrophy or fasciculations, decreased deep tendon reflexes, and intact muscle tone. The impressions included status-post three left shoulder surgeries with subsequent and progressive weakness In a March 2012 letter, Dr. M.H.F. stated that the Veteran "has been under my care since 2003." A history of multiple left shoulder surgeries with referral to physical and occupational therapy "on several occasions for pain and limited range of motion in his left shoulder" was noted. It also was noted that physical therapy had been unable to help the Veteran. Dr. M.H.F. stated that the Veteran lived alone and was in a wheelchair In a May 2012 letter, Dr. M.H.F. stated that the Veteran had received a left shoulder arthroplasty in November 2002 at the VAMC in Houston, Texas. "[The Veteran] had complications from the surgery which resulted in subsequent procedures. He never gained meaningful use of the left shoulder since the surgery." A review of the Veteran's Virtual VA claims file shows that additional VA outpatient treatment records were associated with this file in May 2012. These voluminous records pertain to VA's attempts in recent years to obtain home health care services for the Veteran and his continuing refusal to cooperate in the plan of care with multiple home health care providers sent to him by VA. In statements on his June 2012 substantive appeal (VA Form 9), the Veteran asserted, "3 days after surgery, I had a [staph] infection. When I came back to the VA, they refused to treat me. I had to utilize the services of my private physician through the emergency room" at a private hospital for treatment. The Veteran testified at his March 2013 videoconference Board hearing that he noticed that something was wrong with his left shoulder 2 days after his November 2002 surgery. See Board hearing transcript dated March 13, 2013, at pp. 3. He also testified that a private physician had advised him that he had a staph infection several days after his surgery and all of the surgical hardware originally implanted by VA surgeons had to be replaced by a private physician. Id. The Veteran testified further that, following his left shoulder surgeries, he was unable to use his left arm. Id., at pp. 4. The Veteran also testified further that he had signed a consent form at the time of his original left shoulder surgery at the VA Medical Center. Id., at pp. 5. The Veteran also testified that he had been discharged too quickly from the VA Medical Center following his original left shoulder surgery in November 2002 and, if he had not been discharged too soon, his VA treating physicians would have discovered his staph infection and the other residuals he experienced following this surgery and corrected them. Id. With respect to the Veteran's application to reopen a previously denied claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery ("1151 claim"), the Board notes that the evidence which was of record in August 2005 indicated that the Veteran's current left shoulder disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or to an event not reasonably foreseeable as a result of his November 2002 left shoulder surgery at a VA Medical Center. Despite the Veteran's assertions, a review of the record evidence submitted since August 2005 does not indicate that his current left shoulder disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or an event not reasonably foreseeable as a result of his November 2002 left shoulder surgery at a VA Medical Center. The Board acknowledges in this regard that the newly received evidence shows that the Veteran continues to experience debilitating left shoulder problems. None of the VA or private clinicians who have treated him for left shoulder problems in recent years have related it to the original left shoulder surgery in November 2002, however. Nor have any of these clinicians provided any opinions that the Veteran's current left shoulder disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or an event not reasonably foreseeable as a result of the original surgery in November 2002. The Board finds that, although the evidence received since August 2005 is new, in that it has not been submitted previously to agency adjudicators, it is cumulative or redundant of the evidence at the time of the prior decision which showed that the Veteran's current left shoulder disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or an event not reasonably foreseeable as a result of the November 2002 surgery. Thus, the Board also finds that the evidence received since the August 2005 rating decision denying the Veteran's 1151 claim does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating it. The Board finally observes that, in Shade v. Shinseki, 24 Vet. App 110 (2010), the Court recently held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. In this case, however, there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening the Veteran's previously denied 1151 claim. Unlike in Shade, there is no evidence in this case - either previously considered in the August 2005 rating decision or received since that decision became final - which demonstrates that the Veteran's current left shoulder disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or an event not reasonably foreseeable as a result of his November 2002 left shoulder surgery at a VA Medical Center. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's request to reopen his previously denied 1151 claim. In summary, as new and material evidence has not been received, the previously denied claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery ("1151 claim") is not reopened. ORDER As new and material evidence has not been received, the previously denied claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of left shoulder surgery is not reopened. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs