Citation Nr: 1335046 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-13 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for right shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1980 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas, in which the RO determined that new and material evidence sufficient to reopen a previously denied claim for service connection for a right shoulder disability had been received. The RO reopened the previously denied claim but denied the underlying de novo issue of entitlement to service connection for a right shoulder disability. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). On his March 2010 VA Form 9, "Appeal to Board of Veterans' Appeals," the Veteran requested a hearing before a Veterans Law Judge. In August 2010, the Veteran withdrew his request for a hearing before the Board, and asked for a hearing with a Regional Office Decision Review Officer (DRO). In April 2011, the Veteran indicated that he wished to cancel a DRO hearing that had been scheduled. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. §20.704 (e) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claim file and the electronic claim file in rendering this decision. The issue of service connection for a right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a December 1996 rating decision, the RO denied the Veteran's claim for service connection for a right shoulder disability; the Veteran did not file a notice of disagreement with this action within one year of being notified of the decision. 2. Evidence received since the December 1996 rating decision raises a reasonable possibility of substantiating the claim of service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The December 1996 rating decision that denied the claim for service connection for a right shoulder disability is final. 38 U.S.C.A § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). 2. New and material evidence sufficient to reopen the claim of service connection for a right shoulder disability has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). As to the claim for whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability, the Board is reopening the Veteran's claim. Therefore, any defect in the notice letter concerning the evidence needed to reopen this claim, or, indeed, any deficiency in VA's compliance with its duty to assist the Veteran, cannot be prejudicial to him. Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. See also Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). Claim to Reopen In a December 1996 rating decision, the RO denied service connection for a right shoulder disability. The Veteran notified of that decision and provided with notice of his appellate rights by letter dated in December 1996. However, the record does not reflect that he filed a notice of disagreement within one year of this notification. Accordingly, the December 1996 denial is final. See 38 U.S.C.A § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). The previously disallowed claim of entitlement to service connection for a right shoulder disability may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed his application to reopen his claim in August 2008. Under the applicable provisions, 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. 38 C.F.R. § 3.156(a) (2013). In this regard, in the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans' Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The relevant evidence before the VA at the time of the prior final decision consisted of service treatment records (STRs) which showed that the Veteran had sustained a sprain and strain to the right shoulder in September 1981 while playing football. The Veteran received medical care on several occasions for this injury and was seen as late as January 1982. Subsequent post-service records, including VA treatment records September 1993 until October 1993, were negative for any complaints or treatment regarding the right shoulder injury or residuals thereof. In denying the claim for service connection in December 1996, the RO found that "no permanent residual or chronic disability subject to service connection is shown by service medical records or demonstrated by evidence following service." Therefore, to reopen the claim, the new evidence must show that the Veteran has a current right shoulder disability related to service. Evidence received since the final rating decision includes multiple records showing treatment for a current right shoulder disability and a VA examination report. VA treatment records from May 2005 to September 2008 indicated that the Veteran was treated for right shoulder pain. A VA treatment record from May 2005 showed that the Veteran "may have reaggravated this old injury in the recent altercation." X-rays from May 2006 indicated chronic calcification of the coracoclavicular ligament with AC joint separation. These treatment records indicated that the Veteran received steroid injections in April 2008. The physical examination at that time revealed that there were primary and secondary impingement signs. August and September 2008 records indicated that the Veteran returned to the VA clinic due to his shoulder pain. A VA medical examination conducted in January 2009 included a diagnosis of right shoulder impingement syndrome, although the examiner opined that it was less likely as not that the Veteran's right shoulder pain was related to military service. In reaching this conclusion, the examiner stated that the Veteran's "x-rays of his right shoulder in 1996 to include a CT scan and arthrogram were all within normal limits ... [They] show a calcific density along the underside of the distal right clavicle in the coracoclavicular ligament that more likely than not is related to his multiple traumas that he sustained in civilian life following military service as there is no clear evidence of continued medical treatment of his right shoulder pain at the time of his discharge in 1983 until 1993." For the limited purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Based on the new evidence, the Board finds that there is now sufficient evidence to reopen the claim. Specifically, there is now a current diagnosis of right shoulder impingement syndrome. The lack of a current disability was the basis for denial of service connection in December 1996. Therefore, the Board finds that new and material evidence has been received, as it was not previously of record and raises a reasonable possibility of substantiating the claim of service connection for a right shoulder disability, and the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110, 119-21 (2010). ORDER New and material evidence having been received, the application to reopen a claim for service connection for a right shoulder disability is granted. REMAND Having reopened the claim, the Board concludes that further development is necessary before a decision may be rendered. Although the Board regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to ensure compliance with VA's duty to assist the Veteran in the development of his claim. The Board notes that records reviewed by the VA medical examiner in his January 2009 examination report are not included as part of the claims folder. Specifically, he cited to x-rays of the right shoulder taken in 1993; x-rays taken in 1996 that showed ossification; an arthrogram of the right shoulder taken in 1996; a CT scan of the right shoulder taken in October 1996; and x-rays of the right shoulder taken in March 2008. On remand, the RO or AMC should make appropriate efforts to obtain copies of these treatment records. Accordingly, the case is REMANDED for the following actions: 1. Ensure all records have been associated with the claims file, to the extent possible. Specifically, the RO or AMC should ensure that the evidence referenced in the January 2009 examination report are associated with the claims folder. These records include x-rays of the right shoulder taken in 1993, x-rays taken in 1996 that showed ossification, an arthrogram of the right shoulder taken in 1996, a CT scan of the right shoulder taken in October 1996, and x-rays of the right shoulder taken in March 2008. All attempts to locate these records must be documented in the paper or electronic claims file. 2. Thereafter, readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and allowed an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs