Citation Nr: 19123045 Decision Date: 03/28/19 Archive Date: 03/27/19 DOCKET NO. 16-23 125 DATE: March 28, 2019 ORDER New and material evidence has not been received to reopen the previously denied claim of service connection for a left elbow condition; therefore, the appeal is denied. Service connection for a right shoulder condition is denied. Service connection for a left shoulder condition is denied. FINDINGS OF FACT 1. In a March 1974 rating decision, the regional office (RO) denied service connection for a left elbow condition; the Veteran did not initiate an appeal of that decision within one year of notification. 2. Evidence received since the March 1974 denial is cumulative or redundant of evidence previously of record, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left elbow condition. 3. A right shoulder condition did not have onset during his active service, was not caused by his active service to include service-connected disabilities, and did not manifest within one year of separation from active service. 4. A left shoulder condition did not have onset during his active service, was not caused by his active service to include service-connected disabilities, and did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The March 1974 rating decision that denied service connection for a left elbow condition is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for a left elbow condition have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to December 1973. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a left elbow disability. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). At the time applicable to this appeal, an NOD was defined as a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2017). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim 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 Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156 (b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, in a March 1974 rating decision, the RO denied service connection for a left elbow condition on the basis of no evidence that a preexisting disability was aggravated by service. The Veteran was notified of the denial as well as his procedural and appellate rights in a letter dated in May 1974, but he did not appeal nor was new and material evidence received during the applicable time period. As he did not appeal this rating decision, it became final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. New and material evidence is therefore required to reopen the left elbow claim. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In July 2013 the Veteran submitted a request to reopen his claim of service connection for a left elbow condition. In a February 2014 rating decision, the AOJ denied the request to reopen the claim because the evidence submitted is not new and material. The Veteran was notified of the denial that same month and timely initiated an appeal of the rating decision. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the AOJ granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Evidence received since the denials consists of medical treatment records, the Veteran’s and other layperson statements. There is no probative evidence of aggravation of a preexisting disability. In February 2015 and December 2018, the Veteran submitted statements claiming that his preexisting left elbow condition was aggravated by his active duty service. He recounted seeking treatment for pain during service. He also reported having medical reviews and evaluations that resulted in discharge from active duty service. Post-service the Veteran sought treatment for this condition, including surgery. The Veteran was afforded a Board videoconference hearing in November 2018. He made the same allegations contained in prior correspondence. He reported having a right elbow condition at the age of 14, however, he claimed that upon entrance into active duty service a physical examination was normal. He first experienced pain symptoms during technology school that increased with weather changes during service. He reported that his military occupational specialty was changed due to physical limitations from his left elbow condition that resulted in discharge from active duty. The undersigned left the record open for 60-days for the submission of medical opinion evidence. After the hearing, the Veteran submitted additional lay statements claiming that his preexisting left elbow condition was aggravated by active service, but no medical opinions. He also submitted service treatment records documenting complaints of left elbow pain and treatment. Service treatment records were previously available during the prior denial. The Board finds that some of this evidence is “new” as it has not been previously considered. However, after review, the Board determines that none of it is “material” to an unestablished fact necessary to support the Veteran’s claim of a nexus to service. That is, the evidence received since the March 1974 determination does not provide competent and probative evidence to support the Veteran’s contentions that his preexisting left elbow disability was aggravated by service. The newly added treatment records merely continue to show current treatment for pain. As for the Veteran’s statements, they are unsupported by the evidence of record. The Veteran made the same contentions, that his left elbow condition was aggravated by service, during the prior denial. There is no indication that the Veteran has medical expertise. Thus, he is considered a lay person and not qualified to provide medical opinions on these matters. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Thus, the additional evidence is not new and material. The Board concludes, therefore, that new and material evidence to reopen the claim for service connection for a left elbow condition has not been received. As such, the requirements for reopening the claim are not met. 2. Entitlement to service connection for a right shoulder condition. 3. Entitlement to service connection for a left shoulder condition. The Veteran contends that his right and left shoulder conditions are secondary to his left elbow condition. Specifically, he claims that his left elbow condition resulted in overuse of his right shoulder, which subsequently also resulted in overuse of the left shoulder. As such, in the alternative, he claims this his left shoulder condition is secondary to his right shoulder condition. The question for the Board is whether the Veteran has a current disability which is proximately due to or the result of a service-connected disease or injury. Post-service private medical records document treatment for shoulder pain, including a 2004 right rotator cuff tear and procedure, and 2008 left rotator cuff tear and procedure. In support of his claims, the Veteran submitted December 2018 private medical records documenting complaints that his preexisting left elbow disability was aggravated by service, and resulted in a right shoulder disability due to overuse. The Veteran requested a medical opinion. The private physician stated that an opinion in terms of medical certainty could not be provided, and explained that a left elbow disability could contribute to overuse of the right shoulder and cause rotator cuff problems, however there is no medical certainty but it is possible. There are no other medical opinions of record. Pursuant to this decision, the claim for service connection for a left elbow disability has not been reopened and the claim is denied. Notably, to date, the Veteran has not been granted service connection for any disability. As he has not been granted service connection for his left elbow, the December 2018 medical opinion does not raise a reasonable possibility of substantiating the claims because service connection cannot be granted secondary to a nonservice-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Veteran and his representative have not raised any additional theories of entitlement for service connection or indicated that the record is incomplete. The Board must conclude that the weight of the evidence is against the claims. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt provision does not help the Veteran. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for right and left shoulder conditions are not warranted. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel