Citation Nr: 1625558	
Decision Date: 06/27/16    Archive Date: 07/11/16

DOCKET NO.  16-05 786	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a right shoulder disability, and if so whether the reopened claim should be granted.

2.  Entitlement to service connection for a right wrist disability.

3.  Entitlement to service connection for left ear hearing loss.

4.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	John Berry, Attorney




ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from August 1972 to September 1976.   

This matter comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board acknowledges that the issues of entitlement to nonservice connected pension has been perfected but not yet certified to the Board.  The Board's review of the claims file reveals that the AOJ is still taking action on the issue.  As such, the Board will not accept jurisdiction over it at this time, but it will be the subject of a subsequent Board decision, if otherwise in order.

The record before the Board consists of the Veteran's electronic records in Virtual VA and the Veterans Benefits Management System. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  A rating decision issued in April 2005 denied service connection for a right shoulder disability; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period.

2.  The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim for service connection.


CONCLUSION OF LAW

New and material evidence to reopen the claim of entitlement to service connection for a right shoulder disability has been presented.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Claim to Reopen

Legal Criteria

Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014).  An 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 is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

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."  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."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Factual Background and Analysis

A claim for service connection for a right shoulder disability was previously denied in a July 1999 rating decision in part because the evidence did not show a chronic right shoulder disability.  The Veteran was notified of this decision but did not appeal the decision or submit pertinent evidence within the appeal period.  

The evidence added to the record after the appellate period includes medical diagnoses of right shoulder disability, specifically degenerative joint disease.  This evidence is not cumulative or redundant of the evidence previously of record, and it relates to an unestablished fact necessary to substantiate the claim, notably the existence of a current disability.  Accordingly, reopening of the claim for service connection for a right shoulder disability is in order.




ORDER

The Board having determined that new and material evidence has been received, reopening of the claim for service connection for a right shoulder disability is granted.


REMAND

The record indicates there are outstanding records associated with treatment for the right wrist and right shoulder by the Gainesville VA Health System.  Specifically, the June 2013 VA examiner cites treatment for the right wrist and right shoulder on June 14, 2000, and January 4, 2001, and radiographic imaging on May 17, 2000, that are not of record.  Additionally, the record indicates there are outstanding radiographic imaging reports dated in May 2000 and June 2002, notably those associated with "case 3466" and "case 4130" respectively.  

Additionally, the Board finds the adjudication of the claims for service connection for left ear hearing loss and tinnitus would benefit from an opinion with consideration of the Internet articles submitted by the Veteran.   

Accordingly, the case is REMANDED for the following action:

1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, including all medical records associated with treatment at the Gainesville VA Health System from June 21, 1999.

2.  Afford the Veteran an examination by an audiologist to determine whether the Veteran has left ear hearing loss or tinnitus related to service.  All pertinent evidence of record must be made available to and reviewed by the examiner.

The examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or more that the left ear hearing loss began in service or is otherwise related to service. 

The examiner must not rely solely on the absence of hearing loss in service as the basis for a negative opinion.  The examiner is asked to address the medical article associated with the record on August 1, 2015, and the evidence of a decrease in pure tone threshold at 500 Hz between entrance and separation as documented on the corresponding examination reports. 

The examiner is also requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinnitus began in service or is otherwise related to service.  The examiner is requested to address the "Frequently Asked Questions" and medical article associated with the record on August 1, 2015.  

If either hearing loss or tinnitus is determined to be service-connected, but the other disability is not, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hearing loss or tinnitus (whichever is not yet service-connected) was caused or aggravated by the hearing loss or tinnitus that is service-connected.

3.  Then, readjudicate the issues on appeal, including the issue of service connection for a right shoulder disorder on the merits.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.

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).




______________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs