Citation Nr: 1751386 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-29 183 ) 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 claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right shoulder disability, claimed as right rotator cuff injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his August 2015 VA Form 9, the Veteran requested a videoconference hearing before a Veterans Law Judge. However, in December 2015, he withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a March 1955 rating decision, the RO declined to reopen the Veteran's claim of entitlement to service connection for spondylolisthesis of the lumbar spine. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Additional evidence received since the March 1955 decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for a lumbar spine disability. 3. A right shoulder disability was not present during the Veteran's active service, nor does the record contain any indication that any current right shoulder disability is causally related to his active service or any incident therein. CONCLUSIONS OF LAW 1. The March 1955 rating decision declining to reopen the issue of entitlement to service connection for spondylolisthesis of the lumbar spine is final. 38 U.S.C. § 7105(c) (West 1950); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1954). 2. Since the March 1955 rating decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for a lumbar spine disability; this claim is not reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). 3. A right shoulder disability was not incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Claim to reopen In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. § 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a November 1953 decision, the RO denied the Veteran's original claim of entitlement to service connection for residuals of a back injury. The Veteran disagreed with the denial and perfected a timely appeal. In a March 1954 decision, the Board denied the Veteran's claim. This decision is final. 38 U.S.C. § 7104 (2014); 38 C.F.R. § 20.1100(a) (2017) (a Board decision is final on the date stamped on the face of the decision). In a March 1955 rating decision, the RO confirmed and continued the previous denial after additional service treatment records (STRs) were added to the record. The Veteran did not perfect an appeal, and new and material evidence was not received within one year of the issuance of the decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Veteran now seeks to reopen his claim of service connection for a lumbar spine disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (West); 38 C.F.R. § 3.156 (2017). Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in March 1955. After reviewing the record, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for a lumbar spine disability. The evidence associated with the Veteran's claims file at the time of the last final denial in March 1955 included STRs and the Veteran's statements. At the time of the last final denial, the Veteran contended that he had a lumbar spine disability, which was incurred during his military service. See, e.g., the Veteran's claim dated September 1953. He also contended that he had a pre-existing low back disability that was aggravated beyond its natural progression by his military service. Id. The Veteran served on active duty from August 1953 to September 1953. His January 1953 induction examination did not document any abnormalities of the thoracolumbar spine. However, in August 1953, the Veteran reported that he previously sprained his back at the age of 13. See the STR dated August 1953. He further stated that he hurt his back one day ago while lifting shells. Id. A September 1953 STR confirmed a diagnosis of spondylolisthesis, grade one, L-5 and S-1, symptomatic since 1944. In a September 1953 report of Disposition Board Proceedings, it was noted that the Veteran's lumbar spine condition was painful, not easily remediable and prevented the performance of full or modified military duty. It was determined that the Veteran did not meet the minimum standard requirements for enlistment or induction. In his September 1953 claim, the Veteran asserted that that he sustained a spinal cord injury before his entrance into service, but was reinjured while loading ammunition shortly after entrance into service; he further indicated that his lumbar spine disability was aggravated by an injury during his military service. See the Veteran's claim dated September 1953. As described above, the Veteran's claim of entitlement to service connection for a lumbar spine disability was last finally denied in a March 1955 rating decision, which confirmed and continued the previous denial of his claim. A review of the record shows that the Veteran filed a claim to reopen the matter of entitlement to service connection for a low back injury in April 2004. This claim was not adjudicated by the RO. The Board therefore finds that the Veteran's claim to reopen has been pending since April 2004. Nevertheless, for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for a lumbar spine disability has not been received. The evidence associated with the claims file subsequent to the final decision in March 1955 includes, but is not limited to, the Veteran's VA and private treatment records and lay statements of the Veteran. Medical evidence has been added to the record indicating that the Veteran has continuing complaints of a lumbar spine disability. Significantly, these continuing diagnoses of lumbar spine disability, although new, are essentially cumulative of evidence already of record. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. However, as indicated above, in the current appeal the Veteran has not provided new and material evidence as to a relationship between claimed disability and his military service, which was not previously considered in prior decisions. Accordingly, his contentions made during the current appeal are cumulative and may not be deemed to be both new and material. Shade, supra. The Veteran has been afforded ample opportunity to submit new and material evidence. 38 U.S.C. § 5107(a). As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156 (2017). The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for a lumbar spine disability is not reopened. III. Service connection for a right shoulder disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In this matter, the Veteran contends that he has a right shoulder disability, which is related to his military service. For the reasons set forth below, the Board concludes that service connection is not warranted. Notably, the Veteran has not contended, nor does the record show, that his right shoulder symptomatology manifested during his military service. Indeed, his STRs are absent any treatment for, or diagnosis of, a right shoulder disability or related complaints. Moreover, the September 1953 service separation examination did not indicate any complaint, or finding, of a right shoulder disability. To the extent that the Veteran is arguing that he has a right shoulder disability as a result of his active duty service, it appears that his contentions amount to speculation on his part. Neither the Veteran nor his representative has specifically identified any evidence that the Veteran sustained an in-service right shoulder injury or that a right shoulder disability was otherwise present in service. In short, there is no competent and probative evidence that the Veteran's right shoulder disability was incurred during his active duty. As indicated above, there is no evidence that the Veteran suffered from a right shoulder injury during his military service and his upper extremities were normal at service separation. Notably, VA treatment records dated in July 2008 indicate that a chest x-ray showed metallic anchors of the right shoulder. Subsequent VA treatment records documented the Veteran's complaints of chronic right shoulder pain. See, e.g., the VA treatment records dated April 2009 and September 2014. Significantly, there is no evidence to suggest that the Veteran was diagnosed with a right shoulder disability for decades after his separation from service. As noted above, the Veteran's DD-214 shows that he had less than 90 days of active service; therefore, the presumptive provisions relating to chronic diseases do not apply. Moreover, the Veteran has not asserted, nor does the evidence show, that he had continuous right shoulder symptoms since his separation from service. Additionally, no medical professional has suggested that the Veteran's right shoulder disability is related to his military service, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such medical evidence or opinion. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran's claim of entitlement to service connection for a right shoulder disability is therefore denied. ORDER New and material evidence having not been received, the claim of entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a right shoulder disability. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs