Citation Nr: 1618233 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 11-14 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether the reduction in evaluation for a service-connected lumbar spine disability from 20 to 10 percent, effective April 1, 2010, was proper. 2. Entitlement to an evaluation in excess of 10 percent for osteitis deformans of the right hip. 3. Entitlement to an evaluation in excess of 10 percent for osteitis deformans of the left hip. 4. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a right shoulder condition. 5. Entitlement to service connection for a right shoulder condition. 6. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a left shoulder condition. 7. Entitlement to service connection for a left shoulder condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the Air Force from October 1971 to October 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) in Columbia, South Carolina. With regard to the Veteran's application to reopen her claims for service connection for right and left shoulder conditions, regardless of the decision of the RO as to whether to reopen a previously denied claim, 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); see also VAOPGCPREC 05-92. As explained in detail below, the Board has found that new and material has been received, and the claims are reopened. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The reopened issues of entitlement to service connection for right shoulder and left shoulder conditions are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In February 2016, before the Board promulgated a decision, the Veteran expressed at the Board hearing her desire to withdraw from appellate review the issue of whether the reduction in evaluation of her lumbar spine disability from 20 to 10 percent, effective from April 1, 2010, was proper; she reiterated her desire to withdraw the appeal in writing in March 2016. 2. In February 2016, before the Board promulgated a decision, the Veteran expressed at the Board hearing her desire to withdraw from appellate review the issue of entitlement to an evaluation in excess of 10 percent for a right hip disability; she reiterated her desire to withdraw the appeal in writing in March 2016. 3. In February 2016, before the Board promulgated a decision, the Veteran expressed at the Board hearing her desire to withdraw from appellate review the issue of entitlement to an evaluation in excess of 10 percent for a left hip disability; she reiterated her desire to withdraw the appeal in writing in March 2016. 4. An April 1996 rating decision denied the Veteran's claim for service connection for a right shoulder condition; the Veteran did not file a notice of disagreement, nor submit new and material evidence, within one year of the denial. 5. Evidence received since the April 1996 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim for service connection for a right shoulder condition. 6. An April 1996 rating decision denied the Veteran's claim for service connection for a left shoulder condition; the Veteran did not file a notice of disagreement, nor submit new and material evidence, within one year of the denial. 7. Evidence received since the April 1996 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim for service connection for a left shoulder condition. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of an appeal of the reduction in evaluation of her lumbar spine disability from 20 to 10 percent, effective from April 1, 2010, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal by the Veteran of an appeal involving entitlement to an evaluation in excess of 10 percent for osteitis deformans of the right hip have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 3. The criteria for withdrawal by the Veteran of an appeal involving entitlement to an evaluation in excess of 10 percent for osteitis deformans of the left hip have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 4. The April 1996 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (1996). 5. New and material evidence has been received sufficient to reopen the Veteran's claim for service connection for a right shoulder condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 6. New and material evidence has been received sufficient to reopen the Veteran's claim for service connection for a left shoulder condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal With regard to the Veteran's claims involving the reduction in rating for her lumbar spine disability, and entitlement to higher ratings for her right and left hip disabilities, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2015). At the February 2016 Board hearing, before the Board promulgated a decision in this matter, the Veteran testified that she wished to withdraw from appellate consideration her claims involving the reduction in rating for her lumbar spine disability, and entitlement to higher ratings for her right and left hip disabilities. The Veteran subsequently confirmed her intent to withdraw these issues from appellate consideration in writing in March 2016. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these lumbar spine and right and left hip rating claims, and they are therefore dismissed. II. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's applications to reopen her claims for service connection for right and left shoulder conditions are granted herein, and the claims are remanded for further development. As such, the Board finds that any error under the VCAA with regard to the Veteran's claims is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). III. Analysis A. New and material The primary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claims of entitlement to service connection for right and left shoulder conditions. After a review of the evidence of record and as discussed in greater detail below, the Board finds that new and material evidence has been received, and, therefore, the claims are reopened. Applicable law provides that an RO decision that is unappealed becomes final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Once a decision becomes final, new and material evidence is required to reopen the claim that was denied. 38 U.S.C.A. § 5108 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 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 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) (2015). According to the Court of Appeals for Veterans Claims, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). By way of background, an April 1996 rating decision denied the Veteran's claim of entitlement to service connection for a bilateral shoulder condition based on the lack of evidence of a current disability. The Veteran did not file a notice of disagreement or new and material evidence within one year, and the April 1996 rating decision became final. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (1996). In December 2008, the Veteran filed an application to reopen the claims, which was denied by a June 2009 rating decision. A January 2010 rating decision continued the denial of the application to reopen the claims. The Veteran filed a March 2010 notice of disagreement, an April 2011 statement of the case (SOC) was issued, and the Veteran filed a May 2011 appeal to the Board. Since the final April 1996 rating decision, new evidence associated with the claims file includes, but is not limited to, several VA radiology records showing diagnoses including bilateral rotator cuff tears and bilateral acromioclavicular osteoarthritis. See, e.g., VA x-ray and MRI reports (VVA), November 2006, October 2007, June 2009. The Board finds that these VA treatment records showing current bilateral shoulder conditions are not only new, but also material evidence, and will reopen the claims. At this point, however, the Board will not adjudicate the reopened claims, as further development is necessary, as explained in the remand section below. (CONTINUED ON NEXT PAGE) ORDER The appeal as to whether the reduction in evaluation for a service-connected lumbar spine disability from 20 to 10 percent, effective April 1, 2010, was proper is dismissed. The appeal as to entitlement to an evaluation in excess of 10 percent for osteitis deformans of the right hip is dismissed. The appeal as to entitlement to an evaluation in excess of 10 percent for osteitis deformans of the left hip is dismissed. As new and material evidence has been received regarding the claim of service connection for a right shoulder condition, the claim is reopened; to that extent only, the appeal is granted. As new and material evidence has been received regarding the claim of service connection for a left shoulder condition, the claim is reopened; to that extent only, the appeal is granted. REMAND The Veteran's DD Form 214 reflects her military occupational specialty was inventory management craftsman (i.e., in supply). The Veteran alleges that her shoulder conditions are due to heavy lifting in service. She testified at the Board hearing that she experienced right shoulder pain ever since she lifted some heavy weights in service around the time she had received a flu shot. She further testified at the Board hearing that she did not experience any left shoulder pain in service. Regarding the right shoulder, the service treatment records include a January 1987 neurology record reflecting the Veteran reported right shoulder to hand pain and numbness, but neurological exam was normal. A February 1987 x-ray of the right shoulder was normal. March 1987 records reflect she was evaluated by orthopedics, she reported right shoulder pain since she received a flu shot in December, and joint pain was diagnosed. An April 1987 record shows continued reports of right shoulder pain. A May 1987 record reflects she reported continued right shoulder pain since December, and that it occasionally popped with rotation; probable right shoulder bursitis was diagnosed. June 1987 and July 1987 records show she continued to report right shoulder pain, and she was referred to physical therapy with a provisional diagnosis of right shoulder pain appearing secondary to cervical degenerative joint disease (the Veteran is not service-connected for a cervical disability). A July 1995 x-ray report (CAFB) for the right shoulder was normal. A September 1995 record reflects the Veteran reported right shoulder pain when it is cold. An October 1995 record reflects she reported occasional right shoulder pain. Regarding the left shoulder, the Veteran's service treatment records are silent as to any left shoulder complaints. However, a September 1995 bone scan report (requested relating to her back condition) reflects findings including a small area of increased activity that may represent an early degenerative change involving the coracoid process (i.e., part of the shoulder), and an impression of small area of increased activity in the region of the left coracoid process of uncertain significance was recorded. Shortly after service, a December 1995 VA examination report reflects the Veteran reported that as a supply clerk during her active service, she unloaded heavy crates and packages from shipments in receiving, and that she developed right shoulder pain in the mid-1980s. Examination revealed, among other things, one grade motor weakness of the resisted external rotation involving her right rotator cuff, and a mildly positive impingement sign on the right shoulder was noted. No diagnosis, however, was recorded in the report. The Veteran's post-service VA treatment records include a December 1995 VA x-ray report that reflects her shoulders were normal bilaterally. June 2001 VA treatment records reflect she complained of intermittent bilateral shoulder pain for the past few months, particularly in air conditioning, but denied any trauma, and degenerative joint disease (DJD) was diagnosed, albeit it is not entirely clear whether the diagnosis was based on any x-ray evidence of such. A February 2005 record reflects the Veteran had fallen from a stool on to her left side and complained of left shoulder pain, and multiple contusions were noted. A March 2005 left shoulder x-ray report reflects diagnosed probable calcific tendonitis. An October 2007 VA x-ray report for the left shoulder reflects diagnosed mild acromiohumeral distance narrowing suggesting a degree of rotator cuff tear, and left acromioclavicular osteoarthritis. Regarding the right shoulder, a November 2006 VA MRI report reflects an impression of a right shoulder full thickness rotator cuff tear and acromioclavicular osteoarthritis. See also X-ray report, September 2006. A June 2009 VA x-ray report reflects an impression of findings suggesting bilateral rotator cuff tear and mild bilateral acromioclavicular osteoarthritis. The Board notes that there may be some post-service treatment records missing from the claims file. As noted above, a December 1995 VA x-ray report for the Veteran's shoulders is associated with the claims file, but not the actual underlying VA treatment record, albeit possible that the x-ray was performed in connection with the VA examination. At the same time, however, the Board notes that the actual records of VA treatment in the claims file only date back to October 1996 (the December 1995 radiology record is part of a set of VA radiology records). Also, a September 1997 VA treatment record briefly notes the Veteran was seen in the pain clinic, but the actual record of treatment at the pain clinic is missing from the claims file. Therefore, the Board finds that this matter should be remanded so that all of the Veteran's VA treatment records dated from December 1995 through September 1997 can be associated with the claims file, including any missing December 1995 VA treatment record for shoulder complaints (if any), and the September 1997 VA pain clinic record (beyond the once line notation that the Veteran had been to the pain clinic). Also, an October 1997 VA treatment record notes that the Veteran was being followed apparently by Tricare for various conditions, albeit the Board acknowledges that her shoulders were not specifically noted in this record. However, the Boards notes that there are very few VA treatment records dated between 1995 and 2000. Therefore, on remand, all of the Veteran's Tricare records dated from 1995 to 2000 should be associated with the claims file. The Veteran was afforded a VA examination in September 2013. The VA examiner opined that the Veteran's right and left shoulder conditions are less likely than not related to her active service, reasoning that there were only four records of acute right shoulder complaints in service, and one record of complaint relating to the left shoulder, and there was no evidence of ongoing chronic shoulder problems in service or within one year of discharge. However, as shown above, the service treatment records show a long history of multiple complaints of right shoulder pain, and no left shoulder complaints (although the September 1995 bone scan revealed possible early degenerative changes). Plus, there is in fact a documented right shoulder complaint within one year of discharge in the December 1995 VA examination report, which also reflects examination revealed motor weakness involving her right rotator cuff, and a mildly positive impingement sign on the right shoulder. Also, as noted above, the in-service bone scan revealed possible early degenerative changes of the left shoulder. Moreover, the Board notes that service connection may be granted for any disability diagnosed after discharge when the evidence establishes that the disease or injury was incurred in service - there is no requirement that the disability be diagnosed within one year of discharge, or that it be "chronic." See 38 C.F.R. § 3.303(d) (2015). Therefore, the Board finds the September 2013 VA examiner's opinion to be inadequate, and that on remand, a new VA medical opinion should be obtained to clarify whether the Veteran's right and left shoulder conditions are related to her active service. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all of the Veteran's VA treatment records dated from October 1995 to September 1997, including any record of treatment for shoulder complaints in December 1995 (if any), and the September 1997 VA pain clinic records (beyond a mere notation that the Veteran had been seen in the VA pain clinic). 2. Associate with the claims file all of the Veteran's Tricare treatment records dated from October 1995 through 2000 (noted as "Navy doctors" in October 1997 VA treatment records). 3. After all of the above development has been completed, obtain a VA medical opinion to clarify whether the Veteran's right and left shoulder conditions are "at least as likely as not" related to her active service. The complete claims folder must be provided to the examiner for review, including a copy of this Board decision and remand, and the examiner must note that the claims folder has been reviewed in the report. Please direct the VA examiner's attention to this remand, as well as the September 1995 bone scan that revealed possible early degenerative changes in the left coracoid process, as well as the December 1995 VA examination report that shows right shoulder complaints and findings including one grade motor weakness of involving her right rotator cuff, and a mildly positive impingement sign on the right shoulder. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and her representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 2014). ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs