Citation Nr: 1806868	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-07 399	)	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 of entitlement to service connection for a right shoulder injury.

2.  Entitlement to service connection for residuals of a right shoulder injury.

REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

T. N. Shannon, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1973 to May 1976.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, GA.  In that decision, the RO declined to reopen a claim for service connection for a right shoulder injury.  

The Veteran provided testimony before the undersigned at a Board videoconference hearing in March 2017.  The transcript of that hearing is a part of the record before the Board.

The issue of entitlement to service connection for residuals of a right shoulder 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.  By a decision entered in September 1976, the RO denied the Veteran's claim for service connection for a right shoulder injury; he was advised of the RO's decision, and of his appellate rights.

2.  The Veteran did not initiate an appeal of the RO's September 1976 decision or during the one year period following the mailing of notice of that decision; nor was any new and material evidence received within a year.

3.  New evidence received since the time of the RO's September 1976 decision, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for a right shoulder disability and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The RO's September 1976 decision, denying service connection for a right shoulder disability is final.  28 U.S.C.A. § 4005 (1976); 38 C.F.R. §§ 3.156, 19.129., 19.192 (1976).

2.  New and material evidence has been received to reopen the Veteran's claim for service connection for a right shoulder disability.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist requirements with respect to the matters herein decided.  38 U.S.C.A. §§ 5100, 5102, 5103, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.103, 3.156(a), 3.159, 3.326; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Applicable Laws and Regulations

Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

In the present case, the evidence reflects that the RO denied the Veteran's claim for service connection for a right shoulder injury by a decision entered in September 1976.  Following a review of the evidence as it then existed; the RO essentially concluded that the Veteran had no current disability.  The Veteran was advised of the RO's decision, and of his appellate rights, by a letter dated in October 1976.

No pertinent evidence was received during the one-year period following mailing of notice of the RO's September 1976 decision.  See 38 C.F.R. § 3.156 (1976).  Nor did the Veteran initiate an appeal within that time frame.  As a result, the RO's decision became final.  38 U.S.C. § 4005 (1976); 38 C.F.R. §§ 19.129, 19.192 (1976).  Accordingly, the claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C.A. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Evidence is considered "new" if it was not previously submitted to agency decision makers.  "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 prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Here, the Veteran contends that he injured his right shoulder after being thrown from a horse while on active duty.  The Veteran testified before the Board in March 2017, and stated the doctor he is currently seeing has identified the injury to his right shoulder as an "old" injury, due to arthritis found in the shoulder.  See March 2017 Hearing Transcript at page 14.  The Veteran also testified that he had surgery on his right shoulder in 2013 which was conducted by VA.  He testified that he is a truck driver and currently experiences stiffness in his right shoulder when changing gears.  Id. at 8.

The Board concludes that this evidence is new, in that it was not before the RO when the Veteran's claim was previously denied.  It is also material in that it relates to unestablished facts necessary to substantiate the claim (i.e., that he has a current right shoulder disability and that this disability may be related to his service), and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claim.  See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010).  It is therefore new and material.  The claim for service connection for residuals of a right shoulder injury is reopened.


ORDER

The Veteran's claim for service connection for a right shoulder injury is reopened; to this limited extent, the appeal is granted.


REMAND

An MRI of the right shoulder in June 2010 shows the Veteran has a radial tear involving the anterior and middle fibers of the supraspinatus tendon, partial tears involving the anterior middle fibers of the infraspinatus tendon, supraspinatus and infraspinatus tendinosis and a partial tear of the middle fibers of the subscapularis tendon distally.  See June 2010 Dublin VAMC MRI at page 1.  Severe degenerative change was also noted.  

In a June 2011 VA treatment record for evaluation of the right shoulder, the examiner noted "obvious deformity at AC [joint] with ttp".  See June 2011 Atlanta VAMC Progress Notes at page 1.  Further, the VA examiner opined, "Of note, AC joint arthrosis is a known long term complication of untreated AC join injury, such as the one [the Veteran] described."  Id. at 2.

The Veteran had a VA examination of this right shoulder in August 2013.  Although the examiner diagnosed a right rotator cuff tear, the examiner opined that the Veteran had no chronic right shoulder condition.  The examiner ultimately opined that the Veteran's current right shoulder issue was less likely than not, caused by his in service injury of falling off of a horse.  The examiner rationalized, "It is possible that during thirty plus years since the initial injury, several other injuries may have occurred to that shoulder."  See August 2013 VA Examination at page 9.  The Veteran does not contend he was subjected to any other injuries to his right shoulder since the initial in service injury in 1976.  The examiner is required to consider the lay statements of the Veteran and failed to do so.  Therefore, for the aforementioned reasons, the Board finds this examination inadequate.  A new examination is required to determine whether the Veteran has a current right shoulder disability and whether that disability was caused by or aggravated by his in service injury.

Updated records of the Veteran's VA treatment and/or private treatment should also be procured.  See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession).  This should include VA treatment records regarding the Veteran's 2013 right shoulder surgery.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to provide a release for relevant unattained records of VA treatment and/or private treatment since June 2011.  If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159.  Any new or additional (i.e., non-duplicative) evidence received should be associated with the record.  If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified.

2.  Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159.  The evidence obtained, if any, should be associated with the record.

3.  After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of his right shoulder.  The examiner should review the record.  All indicated tests should be conducted and the results reported.

After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any disabilities of the right shoulder the Veteran has had since March 2010 (when he filed an application to reopen his claim for service connection for such disability).  Then, with respect to each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability has been (a) caused or (b) aggravated (i.e., made worse) by the Veteran's in service injury.

In so doing, the examiner should consider the Veteran's statements and testimony to the effect that he injured his right shoulder after falling off a horse in service and that problems with his right shoulder have persisted since.

A complete rationale for all opinions must be provided and must address whether the current residuals are the type that might, as likely as not, be expected as a result of the injuries described by the Veteran.

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claims remaining on appeal should be readjudicated based on the entirety of the evidence.  If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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.A. §§ 5109B, 7112 (West 2014).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs