Citation Nr: 1336654 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-13 961 ) 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 previously denied claim of entitlement to service connection for degenerative changes and muscle strain of the left shoulder. 2. Entitlement to service connection for degenerative changes and muscle strain of the left shoulder. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to an initial compensable rating for right ear hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran & J.E. ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from September 1973 to June 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from December 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a hearing before the Board. The requested hearing was conducted in May 2013 by the undersigned. A transcript is associated with the claims file. The issue of entitlement to an initial compensable rating for right ear hearing loss and entitlement to service connection for left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Entitlement to service connection for degenerative changes of the left shoulder was denied by the RO in a December 1996 rating decision; the Veteran was notified in writing of the decision, but he did not appeal this issue within the applicable time limit. 2. Evidence pertaining to the Veteran's left shoulder received since the December 1996 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. There is competent and credible medical and lay evidence that shows that the Veteran's degenerative changes and muscle strain of the left shoulder are causally or etiologically due to service. CONCLUSIONS OF LAW 1. The December 1996 rating decision that denied entitlement to service connection for degenerative changes of the left shoulder is final. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1103 (2013). 2. The evidence received since the December 1996 rating decision is new and material, and the Veteran's claim for service connection for degenerative changes of the left shoulder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for degenerative changes and muscle strain of the left shoulder are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for Degenerative Changes and Muscle Strain of the Left Shoulder The Veteran seeks to reopen his claim for entitlement to service connection for degenerative changes and muscle strain of the left shoulder. Notwithstanding determinations by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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, 9 Vet. App. at 273. 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). The record, with respect to this claim, reflects that a claim for service connection for degenerative changes of the left shoulder was last denied in a rating decision of December 1996. The Veteran did not complete a timely appeal and subsequently the December 1996 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be opened if new and material evidence is submitted. In this instance, since the December 1996 rating decision denied the claim on the basis that there was no evidence that the Veteran was treated for degenerative changes of the left shoulder in service, or that he had a chronic left shoulder disorder since service, the Board finds that new and material evidence would consist of evidence that the Veteran has a chronic left shoulder disorder that is a result of service. The evidence received since the December 1996 rating decision consists of numerous records and documents. Among other things, the Veteran's physician submitted a statement in June 2009 indicating that the Veteran has had chronic left shoulder pain post service and was treated for similar problems during service. See June 2009 statement. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Presuming its credibility, the aforementioned evidence indicates that there is a possibility the Veteran's current left shoulder disorder is casually or etiologically due to service. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for degenerative changes and muscle strain of the left shoulder. See 38 C.F.R. § 3.156(a). The Board determines that the claim is reopened. III. Entitlement to Service Connection for Degenerative Changes and Muscle Strain of the Left Shoulder The claim for entitlement to service connection for degenerative changes and muscle strain of the left shoulder has been reopened. The Veteran claims service connection for a left shoulder disorder. He asserts he injured his left shoulder during service and has continued to experience left shoulder pain and discomfort. A. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). B. Facts The Veteran's service treatment records were reviewed. His entrance examination from September 1973 did not note any abnormalities. In August 1976, the Veteran sought treatment for stiffness and soreness in the left medial to lateral aspect of the thoracic area after moving some boxes. It was noted that the pain was sharp in nature and there was a restriction in range of motion. The following entry noted that the Veteran had pain in the left shoulder. He was assessed with a muscle strain. The separation examination from June 1977 did not note any shoulder abnormalities; however, the Veteran did indicate in his Report of Medical History from June 1977 that he suffered from a painful or "trick" shoulder or elbow. The examiner noted that the Veteran had slight bursitis of the left shoulder. Post service, records indicate that the Veteran sought treatment for left shoulder pain in April 1991 and noted that he had a one-month history of pain, with no acute trauma. He was assessed with a probable left rotator cuff tar and scheduled for an arthrogram. The arthrogram was normal and it was noted that the pain was resolved a few weeks later. An x-ray of the left shoulder from September 1992 demonstrated degenerative changes present with some loss of joint space, as well as osteophytes formation off the inferior aspect of the humeral head. The Veteran was diagnosed with mild degenerative changes of the left shoulder. The Veteran was afforded a VA examination in October 1996. It was noted that the Veteran had a diskectomy and fusion of the cervical spine for problems that he has had with pain in the left shoulder radiating into his left arm. He was diagnosed with degenerative changes in the left shoulder. The Veteran's treating physician, Dr. S., submitted a statement in June 2009. The physician noted that the Veteran was being treated for a shoulder condition since April 1991, for chronic left shoulder pain, specifically, bursitis of the left shoulder. The physician noted that service treatment records indicated the Veteran was treated for similar problems during service. The physician opined that the Veteran continues to have chronic shoulder pain as a direct result of shoulder symptoms he developed while in active duty. See June 2009 letter from Dr. S. Another treating physician, Dr. P., submitted a statement in July 2009. The physician indicated the Veteran was being treated for left shoulder pain and that the Veteran had alluded to the fact that the shoulder pain was related to his military service. The physician noted that he did not have records from the Veteran's military service, although it was possible that he could have been injured while in the military. See July 2009 letter from Dr. P. The Veteran was afforded a VA examination in December 2009. The Veteran reported his injury to the left shoulder during service and that over the years he has experienced progressively worse shoulder pain. An x-ray demonstrated advanced arthritic changes of the left shoulder girdle. He was assessed with arthritis of the left shoulder girdle. The examiner noted the Veteran was seen during service for left shoulder pain and was diagnosed with a muscle strain. The examiner also noted that the Veteran indicated he had a painful or trick shoulder or elbow on his separation examination, and was diagnosed at the time with left shoulder slight bursitis. The examiner stated that post service there were no medical records available until 1991, at which time the Veteran reported a one-month history of left shoulder pain. The examiner opined that the Veteran's current left shoulder condition is less likely than not due to his time in service as there was no documentation of a chronic condition occurring during service and no documentation following service between 1977 and 1991, a fourteen year period. The Veteran's private treating physician, Dr. P., submitted an additional statement in November 2010. The physician noted that the Veteran's pain has been constant and his military records make it clear that he injured his left shoulder while carrying some boxes on duty and from weekend lifting activities. The physician opined that the Veteran's degenerative changes were originally caused by the injury to the same area while on duty. The physician noted that the Veteran reported his left shoulder injury during service and was treated. Dr. P. opined that the Veteran's current osteophytic changes are directly attributed to the injury while on active duty, and that most of the Veteran's problem is that even mild effort exacerbates the old injury and causes pain and discomfort to a major degree. See November 2010 letter from Dr. P. Another letter from Dr. S. was submitted in December 2010. The physician opined that after reviewing copies of the Veteran's service treatment records, it is as likely as not that the Veteran's current degenerative changes causing chronic pain in the left shoulder manifested secondary to his military service. See December 2010 letter from Dr. S. The Veteran's wife and friends have also submitted statements. See March 2011 letters. The Veteran's wife indicated that although the Veteran has suffered from left shoulder problems since discharge from service, he would not seek treatment as he was busy working and there was not always enough money to go to the physician. Similarly, the Veteran's friend indicated that he met the Veteran when he returned from service, and at the time, he suffered from a hurt shoulder that still bothers him. See March 2011 letters. The Veteran testified in May 2013 that he was too stubborn to seek treatment for his left shoulder after service until 1991, when the pain became too strong and his shoulder would pop out of socket. See May 2013 BVA Hearing Transcript, page 9. C. Analysis Initially, the Board notes that a left shoulder injury was noted during service as well as on the Veteran's separation Report of Medical History, diagnosed as a muscle strain and left shoulder bursitis. Additionally, current medical records indicate the Veteran currently suffers from a left shoulder disorder. The Veteran has indicated a long history of chronic left shoulder pain. The Veteran is competent to state that he suffered from left shoulder pain during and post service, as he is attesting to matters capable of lay observation and of which he has direct knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Board finds the medical opinions of the Veteran's treating physicians more persuasive than the VA examiner's opinion. While the December 2009 VA examiner opined that the Veteran's left shoulder disorder is not due to service, the examiner based this opinion on the lack of post-service medical records regarding the left shoulder until 1991. Importantly, the Board notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006). A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Veteran has indicated that he did not seek treatment post service, until the pain became progressively worse and he was no longer able to bear it, in 1991. The Board finds these statements to be credible. Furthermore, the November 2010 statement of Dr. P and the June 2009 statement of Dr. S. indicate that they reviewed the Veteran's service treatment records. As such, the Board finds that these opinions are probative and persuasive as they are based on a review of the Veteran's current medical treatment and past service treatment records. In summary, the Veteran suffers from a left shoulder disorder, which has been linked to a left shoulder injury that was noted in service treatment records. Therefore, the Board concludes that service connection is warranted for degenerative changes and muscle strain of the left shoulder. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for degenerative changes and muscle strain of the left shoulder; to this extent, the appeal is granted. Entitlement to service connection for degenerative changes and muscle strain of the left shoulder is granted. REMAND The Veteran seeks entitlement to service connection for left ear hearing loss. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran was afforded a VA examination in June 2009 and was diagnosed with mild to moderate sensorineural hearing loss in the left ear. The examiner opined that based on the absence of a documented hearing loss in the left ear in the discharge audiogram, it is less likely than not that the Veteran's current left ear hearing loss is the result of his military service. Importantly, the absence of documented hearing loss in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As such, the Board finds the June 2009 opinion to be inadequate and a remand is necessary to obtain an addendum opinion. The Board notes that during a August 2012 VA examination, the examiner noted that the Veteran had bilateral hearing loss and also indicated that the hearing loss was at least as likely as not caused by or a result of military service. The examiner then explained that, "this Veteran is currently service connected for his history of mid to high-frequency sensorineural hearing loss as well as his history of constant bilateral tinnitus." It appears that the VA examiner believed the Veteran was already service-connected for bilateral hearing loss, and therefore, it is not clear whether the examiner was providing an actual opinion regarding the etiology of the Veteran's left ear hearing loss. Therefore, a remand is necessary to obtain an addendum opinion. In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of the disorder, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). The VA may not simply disregard lay evidence because it is unaccompanied by medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran also seeks entitlement to an initial compensable rating for his right ear hearing loss. The Board notes that the outcome of the Veteran's claim for service connection for left ear hearing loss would affect the disability rating assigned for the Veteran's right ear hearing loss; therefore, this matter is inextricably intertwined. Thus, the issue is remanded pending adjudication of the claim for service connection for left ear hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following actions: 1. Obtain an addendum opinion to the August 2012 VA examination. The examiner should receive a copy of this Remand and review the Veteran's claims file. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion regarding the following: Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology of his left ear hearing loss, is it at least as likely as not (i.e., probability of 50 percent or more) that the Veteran's left ear hearing loss is causally or etiologically due to in-service noise service. In other words, while the separation audiogram showed normal hearing in the left ear, is any current left ear hearing loss otherwise etiologically related to in-service noise exposure to include on a delayed onset or latent onset theory of causation. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The AMC/RO should then readjudicate the claim for entitlement to service connection for left ear hearing loss and entitlement to an increased rating for right ear hearing loss. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs