Citation Nr: 1530608 Decision Date: 07/17/15 Archive Date: 07/24/15 DOCKET NO. 14-03 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral biceps tendonitis and bilateral subacromial crepitus and, if so, whether service connection for a bilateral shoulder disorder is warranted. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1970 and from October 1981 to March 1982. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In June 2014, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At that time, the Veteran submitted additional evidence. In addition, the undersigned Veterans Law Judge agreed to hold the record open for 30 days to allow the Veteran to submit additional evidence. At the hearing, and on the record, the Veteran waived agency of original jurisdiction (AOJ) consideration of not only the evidence submitted that day but also any evidence submitted within the 30-day period. 38 C.F.R. § 20.1304(c) (2014). Thereafter, the Veteran, through his representative, submitted a private medical opinion. Therefore, the Board may properly consider such newly received evidence. As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran has electronic Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA and VBMS reveals that, with the exception of a copy of the Board hearing transcript and the aforementioned evidence submitted by the Veteran, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The reopened claim of entitlement to service connection for a bilateral shoulder disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In an April 2005 rating decision, the AOJ determined that new and material evidence had not been received in order to reopen the Veteran's claim for service connection for bilateral biceps tendonitis and bilateral subacromial crepitus; the Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. 2. The additional evidence received since the April 2005 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral biceps tendonitis and bilateral subacromial crepitus. CONCLUSIONS OF LAW 1. The April 2005 rating decision that determined that new and material evidence had not been received in order to reopen the Veteran's claim for service connection for bilateral biceps tendonitis and bilateral subacromial crepitus is final. 38 U.S.C.A. § 7105(c) (West 2002) [2014]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) [2014]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral biceps tendonitis and bilateral subacromial crepitus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for bilateral biceps tendonitis and bilateral subacromial crepitus is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the issue is deferred pending additional development consistent with the VCAA. The Veteran is seeking to reopen his claim for service connection for bilateral biceps tendonitis and bilateral subacromial crepitus. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an AOJ decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and 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 interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App 110, 121 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). By way of history, in an April 1982 rating decision, the AOJ originally denied service connection for bilateral biceps tendonitis and bilateral subacromial crepitus, finding that the condition pre-existed service and was not aggravated during service. In this regard, the Veteran's service treatment records (STRs) reflect that, in August 1981, the Veteran completed a Report of Medical History in which he denied experiencing painful or swollen joints, and denied having a "painful or trick shoulder or elbow." In an August 1981 Report of Examination, all of the Veteran's systems, including the musculoskeletal system and upper extremities, were normal upon clinical evaluation. The Veteran was examined in February 1982 for purposes of a Medical Board Review. At that time, in his Report of Medical History, the Veteran indicated he experienced no swollen or painful joints, but did have a "painful or trick shoulder or elbow." In the simultaneous Report of Medical Examination, the Veteran's upper extremities were noted as "abnormal" and he was noted to have bilateral biceps tendonitis and bilateral shoulder impingement syndrome. That same month, the Veteran signed a Disposition Form, requesting medical discharge for physical disability because of a disability that was found to have existed prior to his entry into active service. Therefore, based on such evidence, the AOJ denied service connection for bilateral biceps tendonitis and bilateral subacromial crepitus. Thereafter, in May 1987, the Veteran attempted to reopen his claim for service connection. However, in August 1987, the AOJ determined that newly received evidence, which included post-service private treatment records, did not provide a new factual basis for granting service connection for a bilateral shoulder disorder. The RO again found that such pre-existed service and there was no evidence to show that it was aggravated during service. In connection with another application to reopen his claim for service connection for a bilateral shoulder disorder, in June 2004, the Veteran was asked to provide certain medical records prior to October 23, 2004 or his claim would be denied. No further records were received during that period. The Veteran subsequently filed another application to reopen his claim in November 2004 and, in April 2005, the AOJ declined to reopen the Veteran's claim, finding that the Veteran had submitted a copy of his STRs as well as a copy of his August 1981 reenlistment paperwork and his orders from the Army concerning a January 1981 change of station. Such records had already been considered or were immaterial; therefore, no new and material evidence had been submitted. The Veteran was advised of the April 2005 decision and his appellate rights. However, he did not initiate an appeal from this decision and new and material evidence was not received within one year. Under these circumstances, the Board must find that the April 2005 decision became final. 38 U.S.C.A. § 7105(c) (West 2002) [2014]; 38 C.F.R. §§ 3.104, 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) [2014]. The Board has further considered the provisions of 38 C.F.R. § 3.156(c), which provide that, at any time after VA issues a decision on a claim, if it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include service records that are related to a claimed in-service event, injury, or disease. In this regard, as indicated previously, the Veteran submitted duplicative STRs in connection with his November 2004 claim. Therefore, such are irrelevant and, thus, fall outside the scope of 38 C.F.R. § 3.156(c). The Board further observes that, in connection with his current application to reopen his previously denied claim, the Veteran submitted additional duplicative STRs and a newly received February 1982 STR consisting of an Individual Sick Slip that indicates that he should see the physician's assistant about a reevaluation of a profile. In this regard, a January 1982 STR previously of record reflects that the Veteran was on a profile for bilateral biceps tendonitis and bilateral subacromial crepitus. While the February 1982 STR is new, it is not material as it contains duplicative information that was previously of record, i.e., evidence of an in-service shoulder disorder. Consequently, as it is not relevant, 38 C.F.R. § 3.156(c) does not appeal, and new and material evidence is needed to reopen the Veteran's claim. Other than the February 1982 STR, since the April 2005 rating decision, additional evidence has been associated with the record, including additional statements and Board hearing testimony from the Veteran, post-service private and VA treatment records, and a June 2014 private opinion by the Veteran's doctor, Dr. P.M. In his statements of record and at the Board hearing, the Veteran reported that he entered his second period of active duty service in 1981 and, as part of his entrance physical, was found to be fit for service, with no pre-existing conditions. Specifically, at the Board hearing, the Veteran testified that he had no problems with his shoulders prior to his second period of active duty service, other than some soreness related to working on the family farm. He further described an in-service incident in early 1982 in which he and another soldier were sleeping in a tent that collapsed during an ice storm. Following this incident, the Veteran contends that he began to experience problems with his shoulders, and had continued to experience them since such time. The Board notes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, such statements are presumed credible for the purposes of reopening the claim. See Justus, supra. Post-service private treatment records show the Veteran has been diagnosed with arthritis and degenerative disc disease in his bilateral shoulders. Additionally, in his June 2014 letter, Dr. P.M. indicated that he had reviewed the Veteran's service treatment records dated between January 1981 and March 1982 and opined that it was more likely than not that the Veteran's bilateral shoulder disorder was related to his military service. In sum, the additional evidence received since the April 2005 decision includes the Veteran's competent lay statements and hearing testimony reporting the onset of shoulder problems during service and continuing to the present time, and the June 2014 medical opinion by Dr. P.M. indicating that the Veteran's shoulder disability was more likely than not due to his military service. These statements are presumed credible for the purposes of meeting the criteria for new and material evidence. Accordingly, the Board finds that this evidence is new, as it is not redundant of evidence already in the record in April 2005, and material in that it not only relates to the possibility that any pre-existing condition was aggravated by service, but also that such condition may have been caused by service. See 38 C.F.R. § 3.156(a). Accordingly, the issue of entitlement to service connection for bilateral biceps tendonitis and bilateral subacromial crepitus is reopened. 38 U.S.C.A. § 5108. ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral biceps tendonitis and bilateral subacromial crepitus is reopened; the appeal is granted to this extent only. REMAND 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 reopened claim for service connection for a bilateral shoulder disorder so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As discussed previously, the Veteran contends that his bilateral shoulder disorder had its onset during service or, in the alternative, if such did pre-exist service, it was aggravated therein. Consequently, under either theory of entitlement, he alleges that service connection for a bilateral shoulder disorder is warranted. In addition, the Board observes that, as discussed above, in support of his claim the Veteran submitted a June 2014 private opinion by Dr. P.M. In his opinion, the doctor indicated he reviewed the Veteran's service treatment records and then concluded that it was more likely than not that the Veteran's bilateral shoulder disorder was due to his military service. However, Dr. P.M. did not explain how or why he reached his conclusion. Therefore, the Board finds that he did not provide sufficient rationale to support his opinion. The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In addition, the Veteran has not been afforded a VA examination and opinion to determine whether his bilateral shoulder disorder was incurred in, or aggravated by, his military service. In light of these circumstances, the Board finds that the medical evidence currently of record is inadequate, and that further examination and opinion is needed to resolve the reopened service connection claim on appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, in light of the need to remand for this matter, the Board finds that efforts should be made to obtain any additional treatment records relevant to the matter on appeal. After receipt of any necessary authorization and consent from the Veteran, these records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) . 2. After completing the above development, schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of his bilateral shoulder disorder. The claims folder, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The examiner is asked to provide an opinion with respect to the following: (A) Identify all current disorders of the Veteran's bilateral shoulders. (B) For each currently diagnosed shoulder disorder, the examiner should opine as to whether there is clear and unmistakable evidence that the disorder(s) pre-existed the Veteran's second period of service from October 1981 to March 1982. (i) If there is clear and unmistakable evidence that the disorder(s) pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that any current disorder pre-existed service, then the examiner is asked whether it is at least as likely as not that the disorder is directly related to service, to include as due to an in-service incident involving a tent collapsing on the Veteran during an ice storm. In providing the requested opinion(s), the examiner must consider and discuss the Veteran's service treatment records, to include his in-service diagnosis of bilateral biceps tendonitis and bilateral subacromial crepitus, as well as his competent reports as to the onset and continuity of his bilateral shoulder symptomatology. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to his or her conclusion(s). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated on the merits based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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 2014). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs