Citation Nr: 22013751 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-33 341 DATE: March 10, 2022 ORDER Entitlement to an effective date of July 21, 1997, for the grant of service connection for right shoulder impingement syndrome, rotator cuff (major), is granted. Entitlement to an effective date of July 21, 1997, for the grant of service connection for right shoulder acromioclavicular joint separation (major) is granted. Entitlement to an effective date of May 1, 2000, for the grant of service connection for surgical scars associated with right shoulder impingement syndrome, rotator cuff (major), is granted. FINDINGS OF FACT 1. A claim for service connection for swollen joints, including the shoulders, was received in July 1972, and denied in an August 1972 rating decision; the Veteran submitted new evidence within one year of that decision and was notified in September 1972 that no change in decision was warranted. The Veteran did not submit a timely appeal, new and material evidence was not received within one year of the decision, and he did not file a claim for revision of that denial based upon clear and unmistakable error (CUE); therefore, the decision is final. 2. A claim for service connection for arthritis, including the shoulders, was received in February 1978, and denied in a July 1978 rating decision; the Veteran did not submit new and material evidence within one year of the decision, did not submit a timely appeal, and he did not file a claim for revision of that denial based upon clear and unmistakable error (CUE); therefore, the decision is final. 3. A claim to reopen his previously denied claim for arthritis of the shoulders was received in July 1997 and denied in a January 1998 rating decision. The Veteran was notified of the denial in February 1998. 4. A claim for entitlement to service connection for a right shoulder disability was received in June 2014 and granted in a November 2014 rating decision, at which time an effective date of June 2014 was assigned. 5. New and material VA treatment records regarding the Veteran's claimed shoulder disability were constructively received within one year of the January 1998 rating decision, and as such, the January 1998 rating decision is not final, and the Veteran's July 1997 claim remained pending. 6. The Veteran's surgical scars associated with right shoulder impingement syndrome, rotator cuff (major), are the result of a surgery performed in May 2000. CONCLUSIONS OF LAW 1. The criteria for an effective date of July 21, 1997, but no earlier, for the grant of service connection for right shoulder impingement syndrome, rotator cuff (major) are met. 38 U.S.C. §§ 5110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.159, 3.400. 2. The criteria for an effective date of July 21, 1997, for the grant of service connection for right shoulder acromioclavicular joint separation (major) are met. 38 U.S.C. §§ 5110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.159, 3.400. 3. The criteria for an effective date of May 1, 2000, for the grant of service connection for surgical scars associated with right shoulder impingement syndrome, rotator cuff (major), are met. 38 U.S.C. §§ 5110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in June 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In October 2018, the Board remanded these claims for additional development. In a January 2021 decision, the Board denied entitlement to earlier effective dates for the grant of service connection for right shoulder impingement syndrome, rotator cuff (major), right shoulder acromioclavicular joint separation (major), and surgical scars associated with right shoulder impingement syndrome, rotator cuff (major). The Veteran appealed the January 2021 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted a Joint Motion for Remand (JMR). Earlier Effective Dates 1. Entitlement to an effective date earlier than June 3, 2014, for the grant of service connection for right shoulder impingement syndrome, rotator cuff (major). 2. Entitlement to an effective date earlier than June 3, 2014, for the grant of service connection for right shoulder acromioclavicular joint separation (major). 3. Entitlement to an effective date earlier than June 3, 2014, for the grant of service connection for surgical scars associated with right shoulder impingement syndrome, rotator cuff (major). The Veteran seeks entitlement to earlier effective dates for the grant of service connection for his right shoulder disabilities and surgical scars. As discussed in the JMR, the Veteran and his representative argue that, in particular, a September 1998 VA physical therapy treatment note and January 1999 VA orthopedic progress note, were new and material evidence that were not addressed by the RO. The JMR notes that the January 1999 VA orthopedic progress note has a "date of note" as January 4, 1999, yet the note simultaneously reflects January 4, 2000, as the "entry date." The effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date the claim was received or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Prior to March 24, 2015, VA recognized formal and informal claims. VA regulations provide that new and material evidence received prior to the expiration of the period for appealing a rating decision will be considered as having been filed in connection with the pending claim. 38 C.F.R. § 3.156 (b). When evaluating the finality of a rating decision, 38 C.F.R. § 3.156 (b) requires VA to evaluate records and submissions received during the relevant appeal period and determine whether they contain new and material evidence relevant to a pending claim. See Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with pervious evidence of record, relates to an unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (noting the low threshold for new and material evidence is satisfied where the evidence is new and raises a reasonable possibility of substantiating the claim). If new and material evidence is received, constructively or actually, during the appellate period, VA must readjudicate the claim in a supplemental decision. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (stating that a new decision must be issued that is "directly responsive" to the new evidence). If VA fails to readjudicate the claim in light of the new and material evidence submitted, the claim remains pending until such readjudication occurs. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (stating that because VA failed to readjudicate a claim in light of new and material evidence received during the appellate period, the claim remained pending despite an intervening adjudication). Notably, the U.S. Court of Appeals for the Federal Circuit has held that all VA treatment records created within one year of a decision are constructively before the benefits adjudicator and that VA treatment records "are always reasonably related to a Veteran's claim." See Lang v. Wilkie, 971 F.3d 1348, 1356 (Fed. Cir. 2020). Review of the record reveals that the Veteran initially claimed service connection for swollen joints, including the shoulders, in July 1972, which was denied in an August 1972 rating decision. The Veteran submitted new evidence, in the form of a VA Form 10-10, within one year of that decision. He was notified in September 1972 that no change in decision was warranted. The Veteran did not submit a timely appeal, new and material evidence was not received within one year of the decision, and he did not file a claim for revision of that denial based upon clear and unmistakable error (CUE); therefore, the decision is final. A claim for service connection for arthritis, including the shoulders, was then received in February 1978 and denied in a July 1978 rating decision. The Veteran did not submit new and material evidence within one year of the decision, did not submit a timely appeal, and he did not file a claim for revision of that denial based upon CUE; therefore, the decision is final. A claim to reopen his previously denied claim for arthritis of the shoulders was received in July 1997 and denied in a January 1998 rating decision. The Veteran was notified of the denial in February 1998. The Veteran did not submit a notice of disagreement to this decision; however, a review of the record reveals that additional VA treatment records were generated during the one-year appeal period following the January 1998 rating decision. In particular, VA treatment records, dated as early as September 1998 document x-ray evidence of degenerative changes in the shoulder. See September 25, 1998 VA treatment note. While the VA treatment records were not added to the Veteran's claims file until August 2013, the treatment records were generated and, thus, within VA's constructive possession, within the one-year period following the January 1998 rating decision. The May 2016 statement of the case explains that the Veteran was previously denied service connection due to a lack of diagnosis and was granted service connection in the November 2014 rating decision because treatment records demonstrated right shoulder pathology. Therefore, the VA treatment record dated September 1998 indicating degenerative changes of the shoulder was new and material evidence and reasonably related to the Veteran's claim for a shoulder disability that was filed in July 1997 and pending at the time the September 1998 VA treatment record was generated. Despite VA's constructive possession of the treatment records, the record does not reflect that VA readjudicated the Veteran's shoulder claim in light of the evidence, and as a result, the January 1998 rating decision did not become final. In June 2014, a claim for entitlement to service connection for a right shoulder disability was received, and in a November 2014 decision, the RO granted service connection for right shoulder impingement syndrome, right shoulder acromioclavicular joint separation, and surgical scars of the right shoulder, effective June 2014, the date of receipt of his claim. However, as the Veteran's July 1997 claim for service connection for the shoulder remained pending at the time service connection was established, the proper effective date for the grant of service connection for right shoulder disabilities (impingement syndrome and acromioclavicular joint separation) is July 21, 1997. The Board notes that an effective date earlier than July 21, 1997, is not warranted, however, as there is no evidence of an informal or formal claim subsequent to the last final decision in July 1978 but prior to his claim on July 21, 1997. As noted previously, the Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). Regarding the effective date for the Veteran's surgical scars, evidence indicates that the Veteran did not undergo surgery on his right shoulder until May 2000. See May 2001 VA treatment note; November 2014 VA examination. The record does not specifically indicate the day the Veteran had surgery; therefore, the Board resolves all reasonable doubt in the Veteran's favor and finds that an effective date of May 1, 2000, is appropriate for the grant of service connection for surgical scars. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.