Citation Nr: 1804497 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-12 152A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Whether new and material evidence has been received to reopen a claim for service connection for right shoulder disability, and if so, entitlement to service connection for right shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to July 1978. These matters come before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that rating decision, the RO reopened and denied service connection for right shoulder disability. FINDINGS OF FACT 1. In a July 2009 rating decision, the RO denied service connection for right shoulder disability. The Veteran did not appeal that decision. 2. Evidence received since the July 2009 rating decision addresses the existence of current right shoulder disability. 3. Right shoulder injury in service in 1976 resolved in service without residual pathology. 4. Right shoulder disability, including AC arthropathy and rotator cuff tear, found after 2000 is not related to the injury in service. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying service connection for right shoulder disability is a final decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.156 (2017) 2. Evidence received since the July 2009 rating decision is new and material to the claim for service connection for right shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. Current right shoulder disability was not incurred or aggravated in service, and may not be presumed to be service connected. 38 U.S.C. §§ 1112, 1131, 1137, 5107 (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 has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). The RO provided the Veteran notice in letters issued in 2008 through 2015. In those letters, the RO notified him what information was needed to substantiate claims for service connection. The letters also addressed what evidence is needed to reopen previously denied claims, and how VA assigns disability ratings and effective dates. The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the claims. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Right Shoulder Disability The Veteran contends that right shoulder injury during service led to current right shoulder disability. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of continuity may be legitimately questioned. 38 C.F.R. § 3.303(b). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In November 2008 the Veteran submitted a claim for service connection for disorders including right shoulder disability. In a July 2009 rating decision the RO denied service connection for right shoulder disability. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C. § 7105. The Veteran did not a file a timely NOD with the July 2009 rating decision, and that decision became final. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C. §§ 5108, 7104(b). The Court has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c). In September 2010 the Veteran filed a request to reopen a claim for service connection for right shoulder disability. In an October 2011 rating decision, the RO reopened and denied the claim on the merits. The Veteran appealed the October 2011 rating decision. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The July 2009 rating decision is the only final decision on the right shoulder disability service connection issue. The Board will consider whether new and material evidence has been submitted since that decision. 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(a). The 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, supra, at 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). The evidence that was of record in July 2009 includes the Veteran's claim and his service treatment records. The evidence that has been added to the file since July 2009 includes postservice treatment records and the reports from a VA medical examination addressing his right shoulder. In the July 2009 rating decision the RO denied service connection in part because there was no evidence of current right shoulder disability. VA treatment records and examination reports added to the file after July 2009 indicate that the Veteran has degenerative arthritis of the right shoulder. Thus there is new evidence that relates to an unestablished fact necessary to substantiate the service connection claim. The new evidence raises a reasonable possibility of substantiating the claim. As there is new evidence that is also material, the Board grants reopening of the claim. Having reopened the claim, the Board will consider service connection on the merits. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. During the Veteran's service, he received medical treatment in June 1976 after he fell against a wooden fence while riding a skateboard. He sustained lacerations of his face and abrasion of his right shoulder. Clinicians addressed his facial injuries with suturing and considerable follow-up treatment. Two days after the accident the Veteran reported upper back pain. A clinician stated that the pain was from muscles including the upper trapezius, and that range of motion was restricted due to muscle spasm. Ten days after the injury the Veteran reported pain that a clinician indicated was from the muscles in the area of the left scapula. The clinician's impression was tendinitis. Treatment records from later in service were silent for further reports of symptoms or problems affecting either shoulder. On examination in March 1978, a few months before the Veteran's separation from service, the examiner marked normal for the condition of his upper extremities. The record contains no indication that the Veteran experienced pain or other problems in his right shoulder during the year following his separation from service. Nor is there any information regarding the condition of his right shoulder for 25 or more years after his service. The Veteran submitted his claim for service connection for right shoulder disability in November 2008. In VA treatment in October 2009 he reported that right shoulder pain had worsened. It was noted that in December 2008 x-rays showed degenerative arthritis of the right shoulder. In November 2009 and February 2010 he reported ongoing right shoulder pain. An MRI of his cervical spine revealed stenosis and a prominent osteophyte. In April 2010 he underwent cervical spine surgery, with C4 corpectomy. In August 2010 he reported ongoing right shoulder pain following the surgery. In a September 2010 statement the Veteran wrote that he sustained right shoulder injury during service, in 1976. On VA examination in November 2010 the Veteran reported that he sustained right shoulder injury in a skateboarding accident during service. He stated that his right arm was in a sling for three weeks. He denied any subsequent trauma to that shoulder. He reported that after service he worked as a railroad conductor for eight years, in a car detailing business for twenty years, and as a driver for fifteen years. He stated that in 2005 or 2006 his right shoulder began to hurt. He related that after the 2010 neck surgery he had ongoing pain in his neck and right shoulder and numbness in his right arm. The examiner found pain and limitation of motion in the right shoulder. Right shoulder x-rays showed acromioclavicular (AC) joint narrowing and hypertrophic spurring. Right shoulder MRI in December 2010 showed possible tears. The examiner listed diagnoses of right shoulder AC arthropathy and rotator cuff tear. The examiner provided the opinion that the Veteran's current right shoulder injury was not caused by his skateboarding injury in service. She explained that the service medical records showed injuries of the left shoulder and not the right shoulder. In VA treatment in December 2010 the Veteran related ongoing right shoulder pain. A nerve conduction study showed right median neuropathy. He continued to report right shoulder pain in April 2011. In a September 2011 addendum to the November 2010 VA examination report, the examiner reported having reviewed the claims file. She opined that it is less likely than not that the Veteran's current right shoulder disability was caused by the right shoulder injury in service. She explained that the 1976 right shoulder injury was an abrasion, that right shoulder stiffness noted several days later was temporary and resolved during service, and that no further right shoulder pain was noted later in service, nor after service until many years later, after 2000. The Veteran's history of in-service problems with the right shoulder were noted as were his assertions that his right shoulder started hurting 4-5 years earlier with no intervening trauma since the service injury. In an April 2014 statement the Veteran noted that his current right shoulder disability was preceded by an injury during service. The skateboarding accident during service was followed soon after by treatment for right shoulder muscle pain and stiffness. As there was no indication of continuing problems later in service, and as an examiner found the area to be in normal condition in 1978, before separation from service, the greater weight of the evidence is against the continuation of effects on the right shoulder. There is no evidence that the Veteran had compensably disabling arthritis in his right shoulder within a year following his separation from service, so there is no basis to presume service connection for the arthritis found many years later. The absence of any postservice right shoulder complaints until many years after service is further evidence against continuity between the service injury and the present disorders. The VA examiner's 2011 opinion is based on and consistent with the record, and thus has fairly strong persuasive weight. The Board finds that the preponderance of the evidence is against continuity or other relationship between the service injury and the current disability; and denies service connection for the current disability. (CONTINUED ON NEXT PAGE) ORDER A claim for service connection for right shoulder disability is reopened. Entitlement to service connection for right shoulder disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs