Citation Nr: 1808000 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-08 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for a right shoulder disability. 2. Whether new and material evidence has been received to reopen a service connection claim for a left shoulder disability. 3. Whether new and material evidence has been received to reopen a service connection claim for a right hip disability. 4. Whether new and material evidence has been received to reopen a service connection claim for a left hip disability. 5. Entitlement to service connection for left elbow tendonitis (mild). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to February 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2010; a statement of the case was issued in November 2011; and a substantive appeal was received in March 2012. The issues of entitlement to service connection for right and left shoulder disabilities, right and left hip disabilities, and a left elbow disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In January 2008, the RO denied the Veteran's claims for service connection for a right shoulder disability, a left shoulder disability, and a left hip disability. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance 2. Certain evidence received since the January 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims of service connection. 3. In January 2008, the RO denied the Veteran's claim for service connection for a right hip disability. The Veteran filed a timely notice of disagreement; but failed to file a timely substantive appeal in response to a September 2008 statement of the case. 4. Certain evidence received since the January 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims of service connection. CONCLUSIONS OF LAW 1. The January 2008 RO rating decision, which denied the Veteran's service connection claims for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.156(b). 2. Evidence received since the January 2008 RO rating decision is new and material; accordingly, the claims for service connection for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence As the Board grants the Veteran's petition to reopen, it will not undertake a discussion of VA's duty to notify and assist in this section because any error is harmless. The reopened issues will be addressed in the Remand section below. Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Id. at 117-20. The Veteran's claims for service connection for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability were denied by way of a January 2008 RO decision. With regards to the right shoulder disability, left shoulder disability, and a left hip disability, the Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. With regards to the right hip disability, the Veteran filed a timely notice of disagreement. However, he failed to file a timely substantive appeal in response to a September 2008 statement of the case. As such, these decisions became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (2017) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence on record at the time of the January 2008 denial included the service treatment records and VA examinations dated October 2007 and November 2007. The service treatment records failed to reflect any findings attributed to a right shoulder disability, left shoulder disability, and a left hip disability. They did reflect that the Veteran sustained a seven foot fall in October 2004; and that he reported right hip pain at that time (STR - Medical, 11/29/14, p. 31). The basis for denying the right shoulder disability, left shoulder disability, and left hip disability claims was that there was no evidence of these disabilities in the service treatment records. With regards to the right hip, the RO acknowledged an in-service injury. The claim was denied because it found no current right hip disability in his November 2011 VA examination. Evidence received since the January 2008 rating decision includes a March 2010 diagnosis of a right hip labral tear (Medical Treatment Record - Government Facility, 9/19/11, p. 5), and a January 2011 lay statement from K.J. (who substantiated the Veteran's contention that he was involved in a serious accident in May 2001 while aboard the U.S.S. Saipan) (Third Party Correspondence, 9/1/11). K.J. elaborated that the Veteran sustained injuries to elbows, back, and left hand and that a formal serious incident report was filed. Afterwards, the Veteran had limited duty and therapy and a waiver because he was unable to perform mandatory physical training. The Board finds that this new evidence is new and material evidence to reopen the Veteran's claims. The March 2010 diagnosis of a right hip labral tear addresses the basis for the prior denial, in that it reflects evidence of a current disability. The January 2011 lay statement is evidence supporting an in-service accident that was not noted to have been in the service treatment records. As new and material evidence has been received, the claims for entitlement to service connection are reopened. ORDER The petition to reopen the service connection issues for a right shoulder disability, a left shoulder disability, a right hip disability, and a left hip disability is granted. REMAND The Veteran contends that he sustained serious injuries aboard the U.S.S. Saipan. He stated that he received treatment and underwent therapy at the Portsmouth Navy Hospital. He also stated that he was placed on limited duty for four months; and that the injuries almost cost him his career (Correspondence, 9/1/11). The alleged in-service accident was substantiated by a January 2011 lay statement from K.J. (Third Party Correspondence, 9/1/11). The Veteran's representative has asserted that there may be missing service treatment records, as there do not appear to be any service treatment records pertaining to 2001 (when the alleged accident occurred). The representative also alleged that the Veteran's current disabilities (particularly his hip disabilities) could have been due serving on ships for most of his 20 year career. It suggested that this involved excessive standing on hard metal decks. The representative also noted that the Veteran was scheduled for VA examinations; but that the Veteran had to cancel them. It was requested that the Veteran be rescheduled for the examinations. Accordingly, the case is REMANDED for the following actions: 1. Request service treatment records from the Portsmouth Navy Hospital. All attempts to retrieve these records should be documented in the claims file. If unavailable, then notify the Veteran of this. 2. After any available records are associated with the claims file, then afforded the Veteran a VA orthopedic examination for the purpose of determining the nature and etiology of the Veteran's right shoulder, left shoulder, right hip, left hip, and left elbow disabilities. The examiner is to review the claims file to become familiar with the Veteran's pertinent medical history, to include the fall in 2001. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any disability began during or is causally related to service, to include as due to injuries sustained in 2001 or October 2004, and to include as due to prolonged standing on hard metal decks of ships. To be clear, the examiner is to provide an opinion for each of the following: the right shoulder, left shoulder, right hip, left hip, and left elbow. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. The examiner is to provide a comprehensive rationale for all opinions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. After completion of the above, readjudicate the issues on appeal and determine if the benefits sought can be granted. If any benefit sought remains denied, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs