Citation Nr: 1803613 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-14 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a left shoulder disability. 2. Entitlement to service connection for a left shoulder disability. ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1995 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was scheduled for a Board hearing on April 20, 2017. However, an April 12, 2017 report of general information noted the Veteran had called in to report he was unable to attend the hearing and that he requested the hearing to not be rescheduled. The Veteran requested a decision be made. Accordingly, the Board finds the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.704(e) (2017). The Board also notes that the Veteran was previously represented by a private attorney. In a July 2015 letter, that attorney notified the Veteran of his intent to withdraw as the Veteran's representative. The attorney notified VA and the Veteran in August 2015 that he withdrew as the Veteran's representative. The Board has reviewed these letters and has found the Veteran was properly notified of the withdrawal request and finds good cause to accept the representative withdrawal request. See 38 C.F.R. § 20.1304 (2017). Thus, the Veteran is unrepresented before the Board. FINDINGS OF FACT 1. A November 2009 rating decision denied the Veteran's claim of entitlement to service connection for a left shoulder disability. 2. The evidence received since the November 2009 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for a left shoulder disability. 3. The Veteran's left shoulder disability did not originate in service and is not otherwise related to his active service. CONCLUSIONS OF LAW 1. Since the November 2009 rating decision, new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left shoulder disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in February 2013. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. The Veteran has not identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Application to Reopen Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). Procedural History and Analysis Service connection for a left shoulder disability was initially denied in a May 2002 rating decision based on a finding that the medical evidence of record failed to show that a left shoulder disability had been clinically diagnosed. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b). Thus, the decision became final. Pertinent evidence of record in May 2002 consisted of service medical records, a May 2001 VA examination, and DD Form 214. The Veteran requested to reopen the claim in August 2009. A November 2009 rating decision denied the claim after finding there was no new and material evidence submitted. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. 38 C.F.R. § 3.156(b). Pertinent evidence of record in November 2009 consisted of a September 2009 notice from QTC Medical Services that the Veteran failed to report for his VA examination. Pertinent evidence added to the record since November 2009 consists of VA treatment records from 2002 to 2011 and an April 2013 VA examination. The VA treatment records and April 2013 VA examination show that the Veteran has left shoulder diagnoses of musculoskeletal strain, degenerative spurs involving the left acromioclavicular joint, mild degenerative spurring of the left supraspinatus tendon insertion on the humerus, and left shoulder bursitis. After examination, the April 2013 VA examiner opined that the Veteran's left shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As noted, the evidence is presumed to be credible for the limited purpose of reopening the claim. The Board finds that the VA treatment records from 2002 to 2011 and April 2013 VA examination are new and material, in that they show the Veteran now has a currently diagnosed left shoulder disability and provide more information concerning the onset of left shoulder disability than was of record previously. The Board notes that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, the evidence raises a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for left shoulder disability is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Factual Background In this case, the Veteran asserts that his left shoulder disability is due to his active military service. A review of the service treatment records (STRs) show that during the November 1994 enlistment report of medical history, the Veteran denied that he experienced, or had experienced painful or trick shoulder or elbow. The November 1994 enlistment report of medical examination also noted the Veteran's upper extremities and musculoskeletal system was normal on clinical evaluation. The Veteran was seen in October 1998 for left shoulder and back pain and the provider's impression was a strain. STRs in November 1999 noted the Veteran was seen in acute medical care for left shoulder pain for two months. November 1999 STRs show the Veteran had a three month history of left shoulder pain after falling and displacing his shoulder downward. During evaluation, the provider noted tenderness over the biceps brachii tendon and coracoid process. However, x-rays of the shoulders at the time revealed normal acromioclavicular joint series. November 1999 STRs indicated an assessment of left shoulder pain, rotator cuff strain and row tendonitis. A November 2000 STR noted on a report of medical assessment that the Veteran intended to seek VA disability benefits for his left shoulder disability. On a separation health questionnaire in January 2001, there were no complaints regarding the Veteran's left shoulder. Post-service, the Veteran submitted an application for compensation for service connection for his claimed left shoulder disability in February 2001. The Veteran was provided a VA examination in May 2001. During examination, the Veteran reported that his shoulder injuries were diagnosed in 1998. The Veteran reported that he had jumped out of the back of a stationary truck and fell on his left shoulder. He stated he was carrying many types of equipment on his back when the event occurred. He reported that he was immediately taken to Evans hospital at Fort Carson in Colorado where it was discovered he had suffered a dislocation of his left shoulder joint. The Veteran indicated his dislocation was reduced and he was put on neck, shoulder, and arm splints. The examiner noted there was no evidence of any fracture with the dislocation but that there was a rupture to all of the tendons and ligaments surrounding the left shoulder joint. The Veteran reported he continued to have recurrent pains and occasional swelling of the left shoulder joint, especially after prolonged use. The examiner noted the appearances of the Veteran's shoulder joints were within normal limits and had normal range of motion. The examiner noted that there was no pain associated with the active range of motions and that the range of motion of the shoulder joints were not limited by fatigue, weakness, lack of endurance, or incoordination. The examiner noted that x-rays of the left shoulder revealed a normal study. The examiner did not provide a left shoulder diagnosis. A May 2001 x-ray report of the left shoulder from the Dunwoody Medical Center revealed a normal study since there was no evidence for fracture or dislocation and that the humeral head appeared appropriately aligned relative to the glenoid. The report noted there were no destructive bony lesions or foreign body. A November 2002 VA treatment record noted the Veteran's reports of left shoulder pain and tenderness. The provider noted the Veteran's left shoulder pain was consistent with biceps tendonitis per history and physical. A July 2009 VA treatment record noted the Veteran was seen for complaints of chronic pain in his left shoulder. The Veteran reported the pain began while he was in military service. The provider noted an assessment of chronic left shoulder pain and stated the pain most likely was secondary to chronic dislocations. A July 2009 VA x-ray report of the shoulders noted impressions of mild degenerative change affecting the left acromioclavicular joint and mild degenerative spurring of the left supraspinatus tendon insertion on the humerus. A February 2010 VA treatment record noted an assessment of left shoulder bursitis. The Veteran was provided another VA examination in April 2013. During examination, the Veteran reported that the date of onset of his left shoulder symptoms was in 1999. The Veteran reported the disability began during field training in April 1999 when his shoulder popped out of place while digging a fox hole. He reported the disability had gotten better. After examination, the examiner diagnosed bilateral musculoskeletal strain and degenerative spurs involving the acromioclavicular joint and proximal lateral left humerus. The April 2013 VA examiner considered the Veteran's reports of left shoulder complaints during active service in October 1998 and November 1999 when opining that the Veteran's left shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that despite a left shoulder injury in 1999, his evaluation in 1999 revealed no abnormal findings. The examiner also noted there were no abnormal findings in the Veteran's left shoulder during his 2001 VA examination. The examiner found that although the Veteran sustained a left shoulder injury during active service, there were no residual issues documented. Analysis Given the above, the Board finds that the Veteran's left shoulder disability did not have its onset in active service or within one year thereafter, and is not related to such service. Objective evidence during active service in 1999 and immediately post-discharge in May 2001 revealed normal x-ray findings of the left shoulder. The Board acknowledges the Veteran's continued reports of left shoulder pain since active service. However, pain is considered as a symptom rather than a disability for the purposes of VA compensation. Absent a diagnosis of a disability, pain is insufficient to establish current disability that warrants service connection. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Moreover, the only competent medical opinion of record shows that the Veteran's current left shoulder disability is not related to service. The examiner conducted a thorough review of the claims file, examination of the Veteran, and adequately considered the Veteran's in-service left shoulder complaints before providing a negative opinion that was supported by a sufficient rationale. There is no competent objective medical evidence that indicates a link between the Veteran's current left shoulder disability and active service. The Board acknowledges the July 2009 VA treatment record in which the provider stated the Veteran's left shoulder pain was most likely secondary to chronic dislocations. However, the July 2009 provider failed to specify whether the referenced dislocations were during service or post-service. The provider also failed to provide a sufficient rationale in support of the finding and did not appear to base the finding on a thorough review of the claims file. Instead, the July 2009 provider appeared to base the finding on the Veteran's subjective reports. Thus, the Board affords the July 2009 VA provider's finding of little probative value. As such, the Board finds that the April 2013 VA examiner's opinion the most probative evidence of record because it shows the file was reviewed, the relevant information was considered, and the proffered opinion was supported by correct evidence in the file. The Board notes that a lay person is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that lay evidence concerning continuity of symptoms after service, if credible, are ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board finds that the April 2013 VA examiner's opinion is more probative than the Veteran's personal assertions to the contrary because the examiner has medical expertise that the Veteran does not possess. The Veteran is not competent to ascribe his left shoulder symptoms to a particular diagnosis or, in turn, relate it to his military service, especially when, as here, there is countervailing medical comment. Moreover, the Board reiterates that the Veteran has not submitted any adequate contrary competent evidence linking the Veteran's current left shoulder disability to service, aside from his own assertions, a fact considered by the VA examiner. Accordingly, the Board concludes that the negative evidence is more persuasive and of greater probative value. Thus, the probative evidence of record does not support the claim of entitlement to service connection for a left shoulder disability. The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted, the claim of service connection for a left shoulder disability is reopened. To this extent only, the claim is granted. Service connection for a left shoulder disability is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs