Citation Nr: 1807976	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  10-37 675	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability.

2.  Entitlement to a compensable disability rating for limited extension, right knee associated with right knee strain.

3.  Entitlement to a compensable disability rating for limited extension, left knee associated with left knee strain.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. J. Komins, Associate Counsel
INTRODUCTION

The Veteran had active service in the United States Army from July 1981 to July 1992.  Prior to that, she had active duty for training purposes with the United States Airforce from December 1977 to March 1978.  Furthermore, she had reserve duty service in the United States Airforce and United States Army.

This matter comes before the Board of Veteran's Appeals (Board) on appeal of June 2009 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina.

The issues of entitlement to service connection for a left shoulder disability; entitlement to a compensable disability rating for limited extension, right knee associated with right knee; and entitlement to a compensable disability rating for limited extension, left knee associated with left knee strain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACTS

1.  In April 1995, the RO denied service connection for a left shoulder disability; the Veteran neither expressed timely disagreement nor submitted new evidence within one year.

2.  The evidence received since the April 1995 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim of service connection for a left shoulder disability, and assuming its credibility raises a reasonable possibility of substantiating the claim.




CONCLUSIONS OF LAW

1.  The April 1995 rating decision denying service connection for a left shoulder disability is final.  38 U.S.C. § 7105 (2012); 3 8 C.F.R. § 20.1103 (2017).

2.  New and material evidence sufficient to reopen the claim for service connection for left shoulder disability has been received.  38 U.S.C. § 5108 (2012);  38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Assist and Notify

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012);  
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.");  Dickens v. McDonald, 
814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II.  Reopening Claims

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001);  Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).

VA must reopen a previously and finally disallowed claim when "new and material evidence is presented or secured."  38 U.S.C. §§ 5108, 7104(b) (2012); 38 C.F.R. § 3.156(a) (2017).  In order to satisfy these requirements, the evidence "must be both new and material."  Smith v. West, 12 Vet. App. 312, 314 (1999).  "New and material evidence" is defined as follows:

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 may 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, moreover, must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a) (2017).  In making the determination of materiality, "the credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  
Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement.

Analysis

The Veteran had active duty in the United States Army as an Administrative Specialist, Postal Operations.  She is the recipient of an Army Commendation and other service accolades.  The Veteran alleges that her January 2010 letter, which delineates treatment on 6 occasions, meets the requirements of new and material evidence and, as a consequence, has triggered the reopening of her claim for service connection for a left shoulder disability.

By way of historical context, the Board notes that the Veteran's claim for service connection for left shoulder disorder was first denied in April 1995.  This denial became final on April 17, 1996.  The stated basis for the denial was that service medical records were negative for complaint of or treatment for a left shoulder disorder.  In a subsequent October 2009 rating decision the claim was denied because evidence submitted was found to be neither new nor material. 

In pertinent part, she wrote in her January 2010 letter that she was treated for a left shoulder disability on 6 occasions between September 1981 and December 1984.  She further contended that she was treated by military physicians while on active duty.

In September 2014, the Veteran submitted a letter as an NOD.  She mentioned that her left shoulder was injured and was still "giving [her] much pain."

Review of treatment records from the Columbia, South Carolina Veterans Affairs Medical Center (VAMC) reveal that the Veteran complained about constant shoulder pain in 2013 and 2014.

In November 2017, the Veteran's representative submitted an Appellant's Brief.  In pertinent part, he advanced that the Veteran had submitted new and material evidence in the form of medical records that are sufficient to reopen her claim for service connection for a left shoulder disability. 

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, and it must raise a reasonable possibility of substantiating the claim.   Here, the Board does not concur with the RO that the evidence submitted by the Veteran is neither new nor material.  As noted above, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade, supra. 
Moreover, the Veteran's January 2010 letter, in which she alleged that she received treatment for a left shoulder disability on 6 occasions between September 1981 and December 1984, is presumed credible.  See Justus, supra.  Significatly, it relates to an unestablished fact necessary to substantiate the underlying claim of service connection for a left shoulder disability, and again, assuming its credibility raises a reasonable possibility of substantiating the claim.  As such, this evidence is neither cumulative nor redundant of the evidence of record at the prior denial of the Veteran's claim for service connection for a left shoulder disability.

Therefore, the Board finds that new and material evidence has been received, and the claim for service connection for a left shoulder disability is reopened.


ORDER

As new and material has been received, and to that extent only, the claim for entitlement to service connection for a left shoulder disability is reopened.


REMAND

Although the Board regrets the additional delay, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that she is afforded every possible consideration.  38 U.S.C. § 5103 (2012);  38 C.F.R. § 3.159 (2017).

As noted above, the Veteran contends that she experiences present left shoulder pain that was treated on 6 occasions between September 1981 and December 1984, during her active service.  A review of the Veteran's service treatment records (STRs) reveals that she sought treatment for left shoulder pain in September 1981and received a provisional diagnostic assessment of angina.  The Board acknowledges the Veteran's reports of present pain; however, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  Nevertheless, the new and material evidence, as noted above, triggers VA's duty to assist.  See Shade, supra.  As a consequence, the Board finds that a new examination is necessary before the merits of the Veteran's claim for a left shoulder disability can be addressed.

The Veteran also contends that both her service-connected limited extension, right knee and her service-connected limited extension left knee present functional impairments that are more severe than those contemplated by the current noncompensable disability ratings assigned to each.

The Veteran was last afforded a VA examination for her service-connected limited extension, right knee and her service-connected limited extension left knee in March 2013-almost 5 years ago.  Both the Veteran and her representative contend that her service-connected limited extension, right knee and her service-connected limited extension, left knee have worsened-that is, become more limited as to extension.

The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect.  See Caffrey v Brown, 6 Vet App 377, 381 (1994);  see also Snuffer v Gober, 10 Vet App 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity).

Furthermore, the Board notes that a VA examination of the Veteran's knees to be adequate . . . must, wherever possible, include results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59 (2016)."   See Correia v. McDonald, 28 Vet. App. (2016).  The referenced portion of 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the undamaged joint."  As the March 2013 VA examination did not include all of the aforementioned factors, a new VA examination must be afforded the Veteran that contains adequate information pursuant to Correia.

Accordingly, the case is REMANDED for the following action:

1.  Request all records of VA outpatient treatment, if any, for the Veteran and associate them with the electronic claims file.

2.  Contact the Veteran to identify whether there are any outstanding private medical records.  If there are outstanding records, prepare releases for the Veteran to sign, obtain the records, and associate them with the electronic claims file.

3.  Schedule the Veteran for a VA examination with an appropriate orthopedic clinician.  The entire claims file, including a copy of this REMAND, must be made available to the clinician and the clinician's report must note complete review of the claims file.  Specifically, the examiner's attention is first drawn to the September 1981 notations in the Veteran's STRs for left shoulder pain, where an examiner provided a provisional diagnostic assessment of angina.

The clinician should first provide a thorough description of the Veteran's claimed left shoulder disability and provide a current diagnosis, if any, of a left shoulder disability.  The clinician should then provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed left shoulder disability, other than pain itself, had its onset in, or is otherwise related to her active duty service

The clinician should next evaluate the Veteran's 
service-connected limited extension, right knee and service-connected limited extension, left knee, including reports of symptoms and any clinical observations of instability, pain on motion, deformity, weakened movement, and other functional limitations, if any. 

The clinician should test the range of motion in active motion, passive motion, weight-bearing and non-weight-bearing (as is appropriate for the knees).  If the clinician is unable to conduct the required testing, or concludes that the required testing is not necessary or appropriate in this case she or he should state why.

Further, the clinician must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare- ups from the Veteran.  The clinician must either estimate the Veteran's functional loss due to flare-ups based on all the evidence of record, including the Veteran's lay information or explain why they cannot do so.  The examiner's determination in this regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The clinician should comment on what aspects of the Veteran's daily activities and occupational function are impaired by both her service-connected limited extension, right knee and her service-connected limited extension left knee.  These impairments, if any, should be commented upon separately. (If practicable, each of the two respective service-connected disabilities should be evaluated individually as to aspects of daily activity impairment and occupational function impairment).

It should be noted that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable and discernable symptomatology.  Should there be a clinical basis to support or call into doubt the symptomatology provided by the Veteran, the examiner should provide a fully reasoned explanation.

The clinician should provide a complete rationale for each conclusion reached.

4.  After completion of the above review of the expanded record, re-adjudicate the Veteran's claims.  If any determination remains adverse to the Veteran, the Veteran and her representative should be furnished with a Supplemental Statement of the Case.  An appropriate period of time should then be allowed before the record is returned to the Board.

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 A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs