Citation Nr: 1803886 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-23 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a right hip disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011, June 2012 and November 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2014 Statement of the Case (SOC), the RO, in part, denied the Veteran's claim for service connection for a left shoulder disability without first addressing whether new and material evidence had been presented to reopen the claim. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board notes that in a July 2016 correspondence, the Veteran appeared to disagree with a July 2016 rating decision which denied service connection for a hernia disability and a left foot disability. However, the statement expressing disagreement was not on the standardized VA Notice of Disagreement (NOD) form. In this regard, it is noted that, effective March 24, 2015, VA amended its regulations to provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the Agency of Original Jurisdiction (AOJ) as a NOD only if it is submitted on a standard form, in cases where such a form is provided. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. 19.23, 19.24, 20.201(a) (2017)). For every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal, an NOD consists of a completed and timely submitted copy of that form. VA will not accept as an NOD an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. See 38 C.F.R. § 20.201 (a). In the July 2016 correspondence that was attached to the July 2016 rating decision, the Veteran was provided with a VA Form 21-0958 (Notice of Disagreement). As the Veteran was provided with the correct form after the March 24, 2015, effective date of the new regulation, compliance with such procedure is required for a proper NOD. Therefore, the July 2016 correspondence cannot be accepted as a proper appeal. Furthermore, as the time period for appeal has now passed, as the Veteran had 1 year from the July 2016 notification of the rating decision (July 2017), the July 2016 rating decision has thus been finalized. Accordingly, the Board finds that the issues of entitlement to service connection for a hernia disability and a left foot disability are not on appeal. In April 2017 the Veteran testified at a hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. The issue of entitlement to service connection for a right hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed May 2002 rating decision, the RO denied service connection for a left shoulder disability. 2. Evidence received since the May 2002 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left shoulder disability. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran has a left shoulder disability that is a result of his military service. 4. Resolving reasonable doubt in the Veteran's favor, the Veteran has a cervical spine disability that is a result of his military service. CONCLUSIONS OF LAW 1. The May 2002 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.113 (2017). 2. New and material evidence has been received since the May 2002 denial, and the claim of entitlement to service connection for a left shoulder disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The Veteran's left shoulder disability was incurred during his military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310 (2017). 4. The Veteran's cervical spine disability was incurred during his military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim to Reopen The Veteran filed a claim for service connection for a left shoulder disability which was denied in a May 2002 rating decision on the basis that the evidence failed to show that the Veteran's left shoulder disability was related to his service. The Veteran was notified of this decision but did not appeal. As the Veteran did not appeal the May 2002 rating decision, that decision is now final based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran sought to reopen his claim for service connection for a left shoulder disability in April 2011. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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) (2017). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the May 2002 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence received since the May 2002 rating decision includes a May 2017 correspondence from a private physician who noted that the Veteran had left shoulder pain which began with an in-service injury in 1988. The prior denial of service connection for a left shoulder disability was based on a lack of evidence that there was a relationship between the Veteran's left shoulder disability and his service. The private physician's May 2017 correspondence indicated that the Veteran had a current left shoulder disability that was caused by his service. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a left shoulder disability have been met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. II. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran testified at his April 2017 hearing that his current left shoulder and cervical spine disabilities were the result of an in-service injury which occurred sometime in 1988 during physical training. He also testified that since the initial injury, he had continued to experience left shoulder and neck problems. Notably, the Veteran's service treatment records demonstrate that in December 1988, the Veteran fell and injured his ankle. The Veteran's service treatment records also demonstrate multiple instances where the Veteran complained of neck and left shoulder pain. Notably, July 1991 and August 1991 service treatment records noted left shoulder pain while a July 1991 service treatment record also noted cervical discomfort. A February 1993 service treatment record also noted complaints of left upper extremity pain and weakness. On VA examination in August 2011, the VA examiner opined that the Veteran's cervical spine disability was not permanently aggravated by his service-connected lumbar spine disability. In a May 2017 correspondence, a private physician opined that the Veteran had a history of left shoulder, neck and right ankle pain which began in 1988 while the Veteran was undergoing physical training and fell. While the fall resulted in the Veteran twisting his ankle, the Veteran also broke his fall with his upper left extremity which caused left shoulder and neck pain. The physician noted that x-rays have demonstrated arthritis of the left shoulder and the cervical spine. The physician opined that the Veteran's left shoulder and neck disabilities began with his injury in 1988. The physician noted that the fall was severe enough to cause chronic right ankle pain and therefore the fall could have also started his left shoulder and neck pain. The physician also noted that the Veteran had not experienced neck or left shoulder pain prior to his fall but that since the fall, has had to deal with left shoulder and neck pain. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a left shoulder and cervical spine disability is warranted. Initially, the Board notes that as there is a current diagnosis of left shoulder and cervical spine arthritis, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that the record contains both in-service treatment for left shoulder and cervical spine pain and a positive opinion from the May 2017 private physician who associates the Veteran's current left shoulder and cervical spine disabilities to his service as he opined that the Veteran's left shoulder and cervical spine disabilities related to and a continuation of the symptoms that he experienced in service. Additionally, there is no competent contrary medical evidence of record that indicates that the Veteran's left shoulder and cervical spine disabilities were not incurred in service. Notably, the August 2011 VA examiner opined that the Veteran's cervical spine disability was not permanently aggravated by his service-connected lumbar spine disability. However, the VA examiner significantly did not provide an etiology opinion on a direct basis or address whether the Veteran's cervical spine disability was caused or aggravated by any of his other service-connected disabilities. Therefore, the May 2017 positive nexus opinion of the private physician provides the only competent medical opinion as to the relationship between the Veteran's current left shoulder and cervical spine disabilities and his service on a direct basis. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for a left shoulder disability and a cervical spine disability is granted. See 38 U.S.C. § 5107(b). ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disability is reopened. Service connection for a left shoulder disability is granted. Service connection for a cervical spine disability is granted. REMAND Under the provisions of 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In its November 2015 rating decision, the RO, in part, denied entitlement to service connection for a right hip disability. In January 2016, the Veteran filed the appropriate notice of disagreement (NOD) form as to the November 2015 rating decision regarding the denial of service connection for a right hip disability. While the Veteran expressed disagreement with the November 2015 rating decision, it appears that no subsequent statement of the case was ever issued. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issue of entitlement to service connection for a right hip disability remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and require further action. See 38 U.S.C. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that this claim is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board's actions regarding this issue are taken to fulfill the requirements of the Court in Manlincon. Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case to the Veteran addressing the matter of entitlement to service connection for a right hip disability, including citation to all relevant law and regulation pertinent to these claims. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs