Citation Nr: 18151866 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-42 008 DATE: November 20, 2018 ORDER New and material evidence having been received, entitlement to service connection for recurrent dislocations, left shoulder, is reopened. Service connection for recurrent dislocations, left shoulder is remanded. Service connection for the residuals of a left knee injury is denied. Service connection for the residuals of a right knee injury is denied. FINDINGS OF FACT 1. An unappealed June 1995 rating decision is the most recent final denial for a claim for service connection for recurrent dislocations, left shoulder. 2. Evidence has been received since the June 1995 rating decision that is not duplicative of evidence previously received, and such evidence relates to an unestablished fact necessary to substantiate the underlying claim for service connection, and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence indicates that the Veteran’s left knee condition did not have its onset in active service and is not otherwise related to service. 4. The preponderance of the evidence indicates that the Veteran’s right knee condition did not have its onset in active service and is not otherwise related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for recurrent dislocations, left shoulder. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 3.385 (2017). 2. The criteria for service connection for residuals of a left knee injury have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for residuals of a right knee injury have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1970 to August 1970. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court 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.” The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a final matter before turning to the specific facts of the Veteran’s case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claim was received prior to the expiration of the appeal period stemming from the June 1995 decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thus, 38 C.F.R. § 3.156(b) is not applicable. By way of background, the Veteran’s claim for service connection for recurrent dislocation, left shoulder was denied in March 1971, December 1971, and June 1995 rating decisions. The March 1971 decision denied service connection because the condition began before the Veteran’s entrance into military service and the evidence did not show that it was aggravated beyond a normal progression by service. The claim was reconsidered and again denied in the December 1971 decision. The Veteran did not submit any additional evidence within the year following the rating decision, nor did he perfect an appeal within the required timeframe. Therefore, the decision is final. 38 C.F.R. § 3.109. The Veteran filed his claim to reopen in October 1994. In the June 1995 rating decision, the Regional Office (RO) found no new and material evidence had been submitted to warrant a reopening of the claim. The Veteran did not submit any additional evidence within the year following the rating decision, nor did he perfect an appeal within the required timeframe. Therefore, the decision is final. The Veteran filed his claim to reopen in October 2013. In a February 2014 rating decision, the RO again found that no new and material evidence had been submitted to warrant a reopening of the claim. Evidence at the time of the June 1995 rating decision included the Veteran’s service treatment records (STRs), October 1970 and May 1995 VA examinations, private and VA treatment records indicating left shoulder dislocations post-service and evidence of degenerative changes in the left shoulder, and lay statements submitted by the Veteran. Evidence subsequently added to the claims file included VA treatment records and several lay statements submitted by the Veteran. The statements described the Veteran’s in-service injuries and resulting treatment and the physical activities he performed during basic training which continued to cause him pain and “half-out” dislocations at nighttime. The Board finds that the evidence added to the record after the June 1995 rating decision relates to an unestablished fact necessary to substantiate the claim. Specifically, the Veteran’s lay statements raise a reasonable possibility of substantiating the service connection claim. Accordingly, new and material evidence has been received sufficient to reopen the claim for service connection for recurrent dislocations, left shoulder. Service Connection Service connection is granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306. To establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and, (3) competent and credible evidence of a relationship, or nexus, between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). For purposes of establishing service connection, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term “noted” denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of “clear and unmistakable evidence.”). It is an “onerous” evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Bilateral Knees The Veteran’s August 1969 service entrance examination report, STRs, and July 1970 separation examination report did not contain any complaints, symptoms, treatment, or diagnoses of a left or right knee condition. His self-report of conditions upon separation did not indicate any knee problems. The Veteran has since submitted lay statements that he incurred knee injuries from excessive crawling on his knees prior to meals during basic training. He stated that he insisted that his knees be included at the time of his discharge but that they were not. An October 1970 VA examination diagnosed left knee tendonitis, not active at the time. X-ray examination revealed no significant findings regarding the left knee The Veteran had a left knee arthroscopy in 1992 and a meniscectomy in 1993. At a March 1995 VA appointment, crepitus with flexion and extension of the left knee and stable ligaments were observed. A May 1995 VA pension examination x-ray revealed normal knees bilaterally. An August 2001 VA treatment record noted that his bilateral knees had no edema, inflammation, or crepitus, and normal range of motion. The Veteran reported to VA clinicians that he had bilateral knee pain since the 1980s. A September 2001 x-ray examination revealed no gross evidence of acute fracture or dislocation and no significant degenerative changes in his knees. Subsequent VA treatment records contained complaints of pain in the bilateral knees, development of degenerative joint disease in the left knee, and treatment of his knee conditions with corticosteroid injections and pain medication. The Veteran stated in his July 2016 substantive appeal that he was in a motorcycle accident in the 1980s which led to surgery on his right knee. The Board finds that service connection is not established for the left or right knee. There is no probative evidence of a knee injury in service and although the Veteran has submitted lay statements reporting knee pain from excessive crawling, no knee conditions were observed upon separation and the Veteran himself did not claim knee complaints in the self-report section of his separation examination documents. Inactive left knee tendonitis was noted within a year of separation but has not been an active diagnosis since. The Veteran has current diagnoses relevant to each knee, however, with no injuries to the knees in service, there is no nexus between the current conditions and active service. Accordingly, the preponderance of the evidence is against a finding of service connection for residuals of a left knee injury or right knee injury. Remand Service Connection for Left Shoulder Disability The Veteran should be examined for VA purposes to ascertain whether his shoulder disability increased in severity during service, and if so whether it is clear and unmistakable that increase was the natural progression of the underlying condition. The case is remanded for the following: 1. Schedule the Veteran for an examination of his left shoulder by an appropriate clinician. The claims file information should be made available to the examiner. Any indicated tests or studies should be accomplished. After examining the Veteran and reviewing the entire record, (including the Veteran’s post service history of complaints with surgical repair in 1971), the examiner is asked to render an opinion as to whether the Veteran’s recurrent dislocations of the left shoulder increased in severity during service; and if so, whether that increase in severity was the natural progression of the underlying disability. The conclusions expressed should be clearly explained. 2. Thereafter the claim for service connection should be re-adjudicated. If the decision remains adverse, the matter should be returned to the Board after the appropriate procedural steps are accomplished. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel