Citation Nr: 1805487 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-22 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for a bilateral shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. In an October 2008 rating decision, the claim of entitlement to service connection for a right shoulder disorder was denied because it was not caused by or related to service. 2. The evidence added to the record since the October 2008 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a right shoulder disorder. 3. It is less likely than not that the Veteran's bilateral shoulder disorder is related to active duty service. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied the Veteran's claim for entitlement to service connection for a right shoulder disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. As the evidence received subsequent to the October 2008 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for a right shoulder disorder have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.102, 3.156 (2017). 3. The criteria for entitlement to service connection for a bilateral shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for a bilateral shoulder disorder (to include a right shoulder disorder). The Veteran's claim has been previously denied by the RO in October 2008 on the basis that her right shoulder disorder was not incurred in or related to service. She did not appeal that decision, nor did she submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim. After a review of the evidence submitted since the October 2008 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including a VA examination, which raises the possibility that her right shoulder disorder is related to her active duty service. Not only is this evidence "new" in that it was not of record prior to the last final denial of the claim, it is also "material," as it relates to an unestablished fact necessary to support the claim. Namely, it shows that there may be a nexus between the Veteran's right shoulder disorder and her active duty service. Therefore, the claim should be reopened on this basis. Service Connection The Veteran is seeking entitlement to service connection for a bilateral shoulder disorder. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Based on the evidence of record, the Board finds that service connection is not warranted for the Veteran's bilateral shoulder disorder. While the Veteran's service treatment records indicate that the Veteran sustained numerous injuries to her back, knees, and ankles during service, there were no signs, symptoms, or a diagnosis of any shoulder injury during service. Of note, the service treatment records report that the Veteran fell down a flight of stairs in April 1993. However, there were no reports of a shoulder injury, and the right shoulder imagining studies did not reveal any injury to the Veteran's shoulder. Next, while the post-service medical evidence notes the Veteran reported history of right shoulder pain since service, the records do not objectively document her right shoulder complaints, symptoms, or a diagnosis until 2005 - over 10 years since active service. Moreover, the objective medical evidence does not reflect signs, symptoms, or complaints of a left shoulder injury until approximately 2007. Therefore, continuity of symptoms is not shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3) for arthritis. As part of her claim, the Board recognizes the statements from the Veteran regarding her history of bilateral shoulder symptoms since service. In this regard, while the Veteran is not competent to make a diagnosis related to a shoulder disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," she is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for her shoulder disorder weighs against the Veteran's claims. Further, the Veteran's treatment records contradict her assertions that her symptoms have persisted since service. Specifically, the Veteran's shoulder complaints are inconsistent with her April 1993 service treatment records. Next, the Board notes that the Veteran filed a claim for VA benefits prior to leaving service, and again three years prior (for a right shoulder injury) to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the bilateral shoulder disorder (which now includes a left shoulder injury) she now claims, weighs heavily against her credibility. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active service, despite her contentions to the contrary. In this case, the August 2008 examiner opined that her right shoulder was less likely than not related to service. In support, the examiner determined that the lack of any abnormalities in the Veteran's s-ray imaging studies shortly before separation from active duty indicates that she did not have a shoulder injury during service. Moreover, the post-service medical evidence does not support the Veteran's contentions that she had ongoing shoulder pain as her first reported complaints of pain were only first documented in the medical evidence in 2005. Similarly, in a June 2015 VA examination, the examiner also noted that the Veteran's right shoulder imaging studies from April 1993 were normal, and that the Veteran's follow-up service treatment records reflect continuing complaints of back pain, but no complaints of shoulder pain were reported. Further, given the nature of the Veteran's bilateral shoulder disability, the examiner determined that her disorder was caused by "the natural degenerative aging process," and not related to active duty service. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between her bilateral shoulder disorder and active service. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating her shoulder disorder to active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding an etiology of her bilateral shoulder disorder. See Jandreau, 492 F.3d at 1377, n.4. Because this disability is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's disabilities are found to lack competency As a result, the Board concludes that the preponderance of the evidence is against the claim for service connection for a bilateral shoulder disorder, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing her of both her and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran's past medical history, recorded her current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a right shoulder disorder is granted, and the claim is reopened. Service connection for a bilateral shoulder disorder is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs