ÿþCitation Nr: 18122117

Decision Date: 07/27/18	Archive Date: 07/27/18



DOCKET NO. 15-25 780

DATE:	July 27, 2018

ORDER

New and material evidence not having been received, the appeal to reopen a claim of entitlement to service connection for a low back disability is denied.

Entitlement to service connection for a left shoulder disability is denied.

FINDINGS OF FACT

1. A February 1994 rating decision denied entitlement to service connection for a low back disability; no appeal was taken from that determination and new and material evidence was not received within the one-year appeal period.

2. An October 2005 rating decision declined to reopen the claim of entitlement to service connection for a low back disability because new and material evidence was not submitted; no appeal was taken from the determination and new and material evidence was not received within the one-year appeal period.

3. Since the October 2005 rating decision, new and material evidence has not been received to reopen the claim for entitlement to service connection for a low back disability.

4. The preponderance of the evidence is against finding that the Veteran sustained a chronic left shoulder disability, to include glenohumeral joint degeneration status post distal clavicle excision and glenohumeral joint debridement, due to an injury during service. 

CONCLUSIONS OF LAW

1. New and material evidence has not been received since the October 2005 rating decision to reopen the claim of entitlement to service connection for a low back disability.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.

2. The criteria for service connection for a left shoulder disability, to include glenohumeral joint degeneration status post distal clavicle excision and glenohumeral joint debridement, are not met.  38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the United States Air Force from September 1983 to January 1984, from February 1986 to January 1992, from June 2007 to August 2007, and from July 2009 to October 2009.  This matter comes before the Board of Veterans  Appeals (Board) on appeal from January and May 2015 rating decisions of the Department of Veterans Affairs.  The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2016.  The transcript of that hearing is part of the record. 

Service Connection

The Veteran seeks to reopen a claim for entitlement to service connection for a low back disability, and filed a new claim for entitlement to service connection for a left shoulder disability.  After reviewing the evidence, both claims are denied. 

Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Additionally, a disability that is proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  Ultimately, it is the appellant s burden  to present and support a claim for benefits under laws administered by the Secretary.   See 38 U.S.C. § 5107(a). 

Service connection for chronic diseases listed in 38 C.F.R. § 3.309(a) may also be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service (usually one year); or was noted in service with continuity of symptomatology since service.  38 U.S.C. §§ 1112, 1113, 1131, 1133, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Glenohumeral joint degeneration (aka degenerative joint disease, aka arthritis) is a chronic disease under Section 3.309(a); thus, it is subject to the chronic diseases presumption. 

Whether these requirements are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight.  38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999).  The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence.  Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Pond v. West, 12 Vet. App. 341, 345 (1999); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997).  The Board may also weigh the absence of contemporaneous medical evidence as a factor, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses  negative evidence  which tends to disprove the existence of an alleged fact). 

1. New and material evidence has not been received to reopen a previously denied claim of service connection for a low back disability.

In this case, a February 1994 rating decision denied service connection for a low back disability.  The February 1994 rating decision denied service connection for low back pain and limitation of motion because the evidence did not reveal a chronic low back disability during service.  Notice of the determination was issued to the Veteran, but no appeal was taken from that determination, and new and material evidence was not received within the one-year appeal period.  As such, the February 1994 determination became final.  38 U.S.C. § 7105.

The Veteran filed to reopen the claim in March 2005.  She submitted new evidence from Dr. T.C. showing ongoing treatment for a back condition, as well as the names of additional treating physicians.  The VA informed her of its unsuccessful attempts to obtain records from the other physicians and of her responsibility to obtain and submit those records if she wanted them to be considered.  Ultimately, the Veteran did not submit those records and the October 2005 rating decision declined to reopen the claim finding that the new evidence did not show a link between the Veteran s back condition and service.  Notice of the determination was issued to the Veteran, but no appeal was taken from that determination, and new and material evidence was not received within the one-year appeal period.  As such, the February 1994 determination became final.  38 U.S.C. § 7105.

In May 2014, the Veteran petitioned to reopen the claim, which was denied in the January 2015 rating decision on appeal.  A final decision cannot be reopened and reconsidered unless new and material evidence is presented.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  New evidence is evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a).  Evidence is material where it is relevant and probative of the issues at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome.  Id.; Evans v. Brown, 9 Vet. App. 273, 283 (1996).  New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial.  38 C.F.R. § 3.156(a).

For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  New and material evidence is not required as to each previously unproven element of a claim in order to reopen.  Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).  

New and material evidence has not been received since the October 2005 rating decision which declined to reopen the claim for service connection for a low back disability.  The additional evidence of record since the October 2005 rating decision includes additional medical records showing treatment for a back disorder, April and May 2014 MRI reports showing degenerative changes in the lumbar spine, and lay statements made during the hearing.  While these pieces of evidence are new as they were not previously submitted, they are not material because they do not show the existence of a chronic back disability during service or otherwise establish a medical link to service which were the bases for the denials in February 1994 and October 2005.  Furthermore, among the new evidence was the Veteran s testimony that she was involved in multiple non-service related car accidents in which she was hospitalized, at least in part, for back issues.  When viewed in the context of all the evidence, this tends to decrease the possibility of changing the outcome of her claim.  

Although the AOJ in this case determined that new and material evidence was submitted regarding this claim, a new and material evidence analysis must still be completed by the Board.  The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision.  38 U.S.C. §§ 5108, 7104(b).  The Board is under a statutory obligation to conduct a de novo review of the new and material evidence issue.  Butler v. Brown, 9 Vet. App. 167, 171 (1996); see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Rowell v. Principi, 4 Vet. App. 9, 15 (1993); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  In this case, the Board finds that new and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for a low back disability; therefore, the Board will not discuss the merits of the claims.  Butler v. Brown, 9 Vet. App. 167, 171 (1996) (holding that the Board must first determine that new and material evidence was presented before it can adjudicate the merits of a claim).  For these reasons, the claim to reopen is denied.

2. Entitlement to service connection for a left shoulder disability, to include glenohumeral joint degeneration status post distal clavicle excision and glenohumeral joint debridement, is denied. 

The Veteran contends that her current left shoulder disability is due to in-service injuries.  The question for the Board is whether the Veteran has a current left shoulder disability that at least as likely as not began during service or is related to an in-service injury, event, or disease.  Although she has not been provided a VA examination, the Board finds that the lay evidence regarding in-service injury and treatment is not credible; therefore, a VA examination is not required and the evidence is otherwise against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d); Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010) (holding a VA examination is not required where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible).  

The Veteran contends that her current left shoulder disability stems from wearing a 70-pound backpack during survival training in 1985.  While she is competent to report that she injured her left shoulder during service which resulted in torn ligaments in her shoulder, her reports are not credible due to internal inconsistency in her reports and inconsistency with other evidence in the record.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  Whereas she purports to have sought treatment for her shoulder in 1985 during survival training, her service treatment records are silent for complaints or treatment for a left shoulder condition, and she consistently denied any shoulder problems on all reports of medical examination and reports of medical history of record.  Also, whereas she sought treatment for right arm and right shoulder pain on December 10, 1987, she did not complain of her left shoulder.  Moreover, a follow-up note on December 15, 1987, shows that the right arm and shoulder pain resolved and there were no further instances of complaints or treatment for any shoulder condition during military service.  Finally, whereas she contends that her left shoulder issue persisted during her next assignment as a loadmaster, she did not complain of any left shoulder pain or issues when she complained of low back pain in May 1989 after years of serving as a loadmaster.  See STRs (showing her in that role from at least 1983 to 1987).

The February 2015 medical opinion from Dr. D.T.S. is of no help to the Veteran s claim.  Dr. D.T.S. stated that he found significant glenohumeral joint degeneration in her left shoulder during a November 2014 arthroscopy which was consistent with post-traumatic degenerative change.  According to his report, the Veteran had reported injuring her left shoulder during survival school due to carrying a heavy backpack and she asked him to provide an opinion based on her self-reported information.  Dr. D.T.S. opined that  [t]his may have led to the development of post-traumatic degeneration in her left shoulder.   Medical opinions expressed in terms of  may,  or  could be  are too speculative to be of probative value.  See, e.g., Warren v. Brown, 6 Vet. App. 4, 6 (1993) (finding physician s statement that the Veteran s psychiatric disorder  could have been  caused by active service was too speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (stating that a medical opinion expressed in terms of  may  also implies  may not,  and is too speculative).  Furthermore, there is no indication that Dr. D.T.S. reviewed, considered, or received pertinent medical evidence before rendering his opinion.  Indeed, Dr. D.T.S. s medical opinion is devoid of any references to the Veteran s multiple non-service related car accidents which required ER treatment and are plainly relevant to the matter in issue.  Instead, the opinion appears to be based on inaccurate information and the Veteran s self-reported medical history, which is inconsistent with VA service medical records which fail to show that the Veteran sustained or complained of a left shoulder injury in service.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).  Consequently, the Board gives no probative weight to the February 2015 medical opinion.

While the Veteran believes that her left shoulder disability is related to wearing a heavy backpack during service, the Board reiterates that the preponderance of the evidence weighs against finding that the injury occurred.  

Lastly, the Board recognizes, but finds without merit, the Veteran s contention that the AOJ failed to take into consideration service treatment records dated earlier than January 28, 2010, in the May 2015 rating decision.  The Veteran hinges her argument on the specific date listed in the evidence section of the May 2015 rating decision.  Specifically, the rating decision states:  Service Treatment Records, dated January 28, 2010.   When read in context, the date specifies when the records were received, not the specific date of the relevant information because the dates listed for the VA Form 21-526 EZ and private treatment records in the evidence section similarly reflect the date on which they were received.  To this end, the rating decision lists Dr. D.T.S. s medical as having been received on March 3, 2015, despite the medical opinion s actual date of February 12, 2015.  Furthermore, her argument is moot because the September 2015 Statement of the Case relied on all service treatment records and found, as the Board did above, that there is no evidence of a left shoulder disability in-service. 

 

For these reasons, the Veteran s contentions are without merit and the claim is denied. 

 

U. R. POWELL

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	A. Kutrolli, Associate Counsel 




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