Citation Nr: 1817686 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 16-13 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1956 to November 1957. This matter comes before the Board of Veteran's Appeals (Board) on appeal of a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. The Veteran's original claim for service connection for a right shoulder disorder was denied in an unappealed July 1982 RO decision; a petition to reopen was denied by the Board in an August 1998 decision, but later granted in a February 2008 Board decision; a November 2009 Board decision later denied the claim; the July 1982 RO decision, August 1998 Board decision, and November 2009 Board decision are final. 2. The evidence added to the record since the November 2009 Board decision is cumulative and does not relate to an unestablished fact necessary to substantiate the claim of service connection for a right shoulder disorder. CONCLUSIONS OF LAW 1. The July 1982 RO decision, August 1998 Board decision, and November 2009 Board decision that denied the Veteran's claim for entitlement to service connection for a right shoulder disorder are final. 38 U.S.C. §§ 7103, 7105 (West 2012); 38 C.F.R. §§ 20.1100, 20.1103, 20.1105 (2017). 2. As the evidence received subsequent to the November 2009 Board decision is not new and material, the requirements to reopen the claim for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.102, 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (West 2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims file. A VA examination is not associated with the claims file. However, VA has no obligation to provide an examination or to obtain an opinion if new and material evidence has not been presented. 38 C.F.R. § 3.159 (c)(4)(iii). Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). 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 has previously filed multiple claims in which he has been denied service connection for a right shoulder disorder. The Board concludes that new and material evidence has not been added to the record since the last final denial of the claim. The Veteran's original claim for service connection for a right shoulder disorder was denied in an unappealed July 1982 RO decision. A petition to reopen was denied by the Board in an August 1998 decision. However, another petition to reopen was granted in a February 2008 Board decision. The Board denied the claim on the merits in a November 2009 Board decision. A review of the November 2009 Board decision demonstrates that VA declined to grant service connection based on the fact that although the Veteran has demonstrated an in-service shoulder injury, he has not shown that a right shoulder disorder manifested within 1 year of service, has existed continuously since service, or is otherwise related to service. He did not appeal the decision within one year, nor did he 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. The only medical records attached to the claims file since the last final denial are service treatment records. Under 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the provisions of 38 C.F.R. § 3156(a). 38 C.F.R. § 3.156(c) (2017). However, in this instance, the Veteran's service treatment records were considered in the last final denial - the November 2009 Board decision. The Board thoroughly discussed the Veteran's in-service incident, including a reference to a November 1957 release from active duty examination report. Therefore, the evidence is not "new" as it has previously been considered by the Board. Even if the service treatment records had been new, the service treatment records would also have to be "relevant." See 38 C.F.R. § 3.156(c). However, as the Board is contesting a nexus between a current right shoulder disorder and service rather than contesting the existence of an in-service incident, additional service treatment records would still not raise a reasonable possibility of substantiating the claim. Therefore, as no evidence that is both "new" and "material" has been submitted, the claim is not reopened. ORDER New and material evidence having not been submitted, the application to reopen a claim for entitlement to service connection for a right shoulder disorder is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs