Citation Nr: 1602121 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 00-17 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral shoulder disability. 2. Whether new and material evidence have been received to reopen the claim of entitlement to service connection for residuals of frostbite to bilateral feet. REPRESENTATION The Veteran is represented by: Hugh D. Cox, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to June 1964, as well as a 45-day period of active duty for training from September to October 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2000 and April 2004 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). The issue of entitlement to service connection for a bilateral shoulder disability and whether new and material has been received to reopen the issue of entitlement to service connection for residuals of frostbite, bilateral feet, will be addressed in the Remand portion of the decision below. FINDINGS OF FACT 1. The Veteran's original claim of entitlement to service connection for a bilateral shoulder disability was denied in a May 1965 rating decision. 2. The Veteran submitted a claim to reopen the issue of entitlement to service connection for a bilateral shoulder disability in April 1991, which was denied ultimately by the Board in June 1998. The Veteran did not appeal the Board's decision. 3. Evidence received since the final June 1998 Board decision is both new and material, and raises a reasonable possibility of substantiating the underlying claim. CONCLUSIONS OF LAW 1. The June 1998 Board decision is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1997); 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015). 2. The criteria to reopen the claim of entitlement to service connection for a bilateral shoulder disability have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's original claim of entitlement to service connection for a bilateral shoulder disability was denied in a May 1965 rating decision. In April 1991, the Veteran submitted a claim to reopen the issue of entitlement to service connection for a bilateral shoulder disability. After this claim was denied, the Veteran perfected an appeal. The Board ultimately denied this issue in a June 1998 decision. The Veteran did not appeal the June 1998 Board decision and, thus, it is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1997); 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). In June 1999, the Veteran submitted a claim to reopen the issue of entitlement to service connection a bilateral shoulder disability. In an April 2000 rating decision, the RO determined that the evidence received since the June 1998 Board decision was not new and material sufficient to reopen the Veteran's claim. RO decisions are not binding on the Board and, consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). As the June 1998 Board decision is the last final disallowance, the Board must review all of the evidence submitted since then to determine whether the Veteran's claim for service connection for a bilateral shoulder disability should be reopened and re-adjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. The Veteran's original claim of entitlement to service connection for a bilateral shoulder disability was denied in May 1965 because the RO found that there was no evidence of an in-service bilateral shoulder disability and no evidence of right and/or left shoulder arthritis being present to a compensable degree within one year since his service separation. Moreover, the Veteran underwent a VA examination pursuant to this claim. Clinical and radiological evaluation of the Veteran did not reveal any shoulder abnormalities. In the June 1998 decision, the Board denied the Veteran's claim to reopen the issue of entitlement to service connection for a bilateral shoulder disability because it found that new and material evidence had not been received. More specifically, the Board determined that the evidence received since the most recent previous final denial, a June 1975 rating decision, although new, did not raise a reasonably possibility of substantiating the underlying claim. Since the June 1998 Board decision, the Veteran reiterated his assertion that he was exposed to cold weather during his active duty, and that his bilateral shoulder disability is related to this exposure. In support of this assertion, VA has received evidence since the June 1998 Board decision. Among this evidence is documentation showing the weather conditions during the period of time that the Veteran's alleges his in-service exposure to cold temperatures occurred. Additionally, the Veteran submitted a June 2008 letter from R. W. R., M.D., wherein the doctor opines that the Veteran's bilateral shoulder arthritis "may be related" to his active duty, "but only if [an] injury could be documented." The Board finds that this evidence is new, as it was not previously received by VA for consideration. With respect to materiality, the Board finds that evidence as to the weather conditions during the Veteran's active duty is material insofar as it corroborates his allegations of in-service exposure to cold temperatures. Consequently, the Board finds that the evidence received since the June 1998 decision is material because it purports to show that a current bilateral shoulder disability may have been incurred in or due to the Veteran's active duty. As such, the evidence received since the June 1998 Board decision relates to an un-established fact necessary to substantiate the claim. Consequently, the Board finds that VA has received new and material evidence sufficient to reopen the issue of entitlement to service connection for a bilateral shoulder disability. In determining that the evidence received since the June 1998 decision is both new and material, the Board considered whether the evidence could, if the claim was reopened, reasonably result in the substantiation of the claim with VA's assistance. 38 C.F.R. § 3.303(b); see Shade, 24 Vet. App. at 117. ORDER New and material evidence, having been received, the claim of entitlement to service connection for a bilateral shoulder disability is reopened and, to this extent only, the claim is granted. REMAND Bilateral Shoulder Disability In order to satisfy VA's duty to assist, the Board finds that a remand is warranted in order to provide the Veteran a VA examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes). Residuals of Frostbite, Bilateral Feet In February 2008, the Board remanded the claim of entitlement to reopen the issue of entitlement to service connection for residuals of frostbite, bilateral feet, for additional development. After the RO issued a June 2009 supplemental statement of the case, this matter was remitted to the Board. The Board remanded this claim in August 2009 and, again, in February 2010. The Board is unable to locate any documentation that the RO has acted upon the February 2010 directives. Indeed, it is unclear whether the RO aware that this claim is still pending before VA. As such, a remand is required in order for the RO to address the February 2010 Board remand directives. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must provide the Veteran a VA examination to determine whether the Veteran. The electronic claims file must be made available to and reviewed by the examiner. All necessary and appropriate tests must be performed and their results documented. The examiner must fully describe all manifestations of any current bilateral shoulder disability, including, but not limited to, arthritis. After examining the Veteran and reviewing the service and post-service treatment records, the examiner is must provide an opinion as to whether any previously or currently diagnosed shoulder disorder is related to his military service, to include as due to cold exposure. In so doing, the examiner must consider and discuss (a) the Veteran's assertion that he was exposed to cold weather during his active duty and that his current bilateral shoulder arthritis is related to said exposure; (b) the Veteran's discharge examination following the 45-day period of service in September and October 1966, which appears to show a history of bilateral shoulder arthritis; and (c) the Veteran's report of lay observable bilateral shoulder symptoms during and since his active duty. A complete rationale for all opinions expressed must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim of entitlement to service connection for a bilateral shoulder disability must be re-adjudicated, to include all of the relevant evidence of record. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 5. With respect to the claim to reopen the issue of entitlement to service connection for residuals of frostbite, bilateral feet, the RO must undertake all of the directives contained within the Board February 2010 remand. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs