Citation Nr: 1216132	
Decision Date: 05/04/12    Archive Date: 05/10/12

DOCKET NO.  10-13 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left shoulder disability, to include muscle injury and arthritis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Marenna, Associate Counsel

INTRODUCTION

The appellant had active service from February 1963 to November 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In November 2011, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In November and December 2011, the Board received VA treatment records from the appellant, including a nexus opinion from December 2011.  The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative.  38 C.F.R. §§ 19.37, 20.1304 (2011).  In written statements submitted with the evidence, dated in November and December 2011, the appellant waived RO consideration of the new evidence.  Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal.

The reopened issue of entitlement to service connection for a left shoulder disability, to include muscle injury and arthritis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A June 1993 rating decision denied the appellant's claim of entitlement to service connection for residuals of muscle damage in the left shoulder resulting in complaints of pain on the bases of no in-service incurrence and no nexus to service.

2.  The appellant did not file a timely substantive appeal of the June 1993 rating decision.           

3.  Evidence submitted subsequent to the June 1993 rating decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The June 1993 rating decision is final as to the claim of entitlement to service connection for residuals of muscle damage in the left shoulder resulting in complaints of pain.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2011).  

2.  New and material evidence has been received since the June 1993 rating decision to reopen the claim of entitlement to service connection for a left shoulder disability, to include muscle injury and arthritis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the appellant's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  Veterans Claims Assistance Act (VCAA)

The claim to reopen the previously disallowed claim for service connection has been granted, as discussed below.  As such, the Board finds that any error related to the Veterans Claims Assistance Action (VCAA) on that petition to reopen is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006).  Accordingly, the Board may proceed with a decision on the appellant's claim to reopen.  

II.  Legal Criteria

New and Material Evidence

In general, rating decisions that are not timely appealed are final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2011).

If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).  

The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant.  Jackson, 265 F.3d at 1369; Barnett, 83 ubeasley@example.com.  

"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.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

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).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The 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 her claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim).

In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase 'raises a reasonable possibility of substantiating the claim' as "enabling rather than precluding reopening."  The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim.  See Shade, 24 Vet. App. at 120.  


Service Connection

Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).   

III.  Analysis

In a June 1993 rating decision, the RO denied entitlement to service connection for residuals of muscle damage in the left shoulder resulting in complaints of pain.  The RO found that the appellant's service treatment records failed to show there was any evidence of muscle involvement in the abrasions and contusions of her left shoulder area that she sustained in an automobile accident in April 1965.  The appellant received notice of the rating decision in did not appeal the rating decision.  Consequently, it became final.  38 U.S.C.A. § 7105.   

The appellant filed a claim to reopen her claim for entitlement to service connection for a left shoulder disability in September 2008.  The claim was denied in a January 2009 rating decision.  The appellant filed a notice of disagreement with the decision in January 2009.  The claim was again denied in a March 2009 rating decision.  However, as the appellant filed a timely notice of disagreement with the January 2009 rating decision, and a statement received in October 2009 may be reasonably construed as a timely substantive appeal therewith, the Board finds that the January 2009 rating decision did not become final, and is the rating decision on appeal.  

The evidence of record at the time of the previous final denial included the appellant's service treatment records, VA treatment records and a June 1979 VA orthopedic examination.  The orthopedic examination revealed no evidence of musculoskeletal or neurovascular residual clinical findings in relation to the laceration of the left shoulder area.  

The evidence added to the record subsequent to the last final denial includes additional VA treatment records, the appellant's Social Security Administration records, statements and hearing testimony from the appellant, a September 2009 VA examination report, and a December 2011 opinion from a VA physician.   

A July 2009 VA treatment record reflects that X-rays of the left shoulder revealed evidence of apparent intramuscular opacification which could be consistent with retained glass fragments.  Spurring of the acromioclavicular joint was also noted.  The impressions were arthralgia of the left shoulder with history of an old injury and probable retained glass foreign bodies, and acromioclavicular joint arthritis.  A November 2011 X-ray report reflects that the appellant had moderate degenerative changes about the left acromioclavicular joint.  The left shoulder was unchanged in appearance from April 2009.

In a November 2011 VA orthopedic surgery note, a VA physician stated that the appellant had a long history of having an injury to her left shoulder that occurred when she was on active duty.  It was noted as medical history that she had been in a motor vehicle accident and sustained a severe injury to her body which injured her left shoulder, her left arm and her left knee.  The appellant told the physician that she had had persistent pain and problems with her shoulder since the accident in service.  The VA physician noted that she had been treated by him for the last four to five years.  He stated that she has always had pain in the shoulder itself.  On physical examination, the deltoid muscle appeared to be functioning.  She had roughened areas deep to a scar and there appeared to be foreign bodies in the area.  The acromioclavicular joint was enlarged and also painful.  She had no supraspinatus or lift-off problems by careful examination.  The biceps and triceps examination was essentially within normal limits.  An X-ray of the shoulder revealed multiple calcified areas in the soft tissue around the shoulder.  The shoulder joint showed the glenohumeral joint to be essentially free of arthritic changes.  However, the appellant had degenerative changes in the acromioclavicular joint of a significant degree.  

In the December 2011 addendum opinion to the orthopedic surgery note, the VA physician stated that it is "certainly as likely as not that the muscle injury and the arthritis of her left shoulder is secondary to a car accident that occurred while the patient was in the service.  An injury such as this lead to degenerative arthritis and post-traumatic arthritis."  The VA physician stated that the appellant's service record showed that she sustained this injury of the left shoulder as the result of a car accident and that it was his opinion that this indeed was the cause of her particular problem.  

As the December 2011 opinion was added to the claims file subsequent to the last final denial, it is new.  The RO denied the appellant's claim in the June 1993 rating decision because there was no nexus between a shoulder disability and service.  The appellant's VA treatment records indicate that appellant may have retained glass fragments in her shoulder from the in-service car accident.  The December 2011 opinion indicates that the appellant has a current left shoulder disability that is related to the car accident in service.  Thus, the December 2011 opinion relates to an unestablished fact necessary to substantiate the claim.  See 38 C.F.R. § 3.156(a) (2011).  The Board finds that the new evidence indicating that the appellant's left shoulder disability is related to the car accident in service raises a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156(a) (2011).  As new and material evidence has been received, the claim for service connection for a left shoulder disability, to include muscle injury and arthritis, is reopened.   



ORDER

As new and material evidence has been received, the claim for entitlement to service connection for a left shoulder disability is reopened, and the appeal, to this extent, is granted.


REMAND

The Board finds that a new VA examination is necessary to determine whether the appellant's left shoulder disability is related to service.  The appellant's left shoulder was evaluated at a VA examination in September 2009.  The September 2009 VA examiner reviewed the claim file, completed an examination, and reviewed X-ray results from August 2009.  The VA examiner found that the appellant had mild left acromioclavicular joint disease, impingement syndrome of the left shoulder, and left shoulder scars.  The VA examiner noted that multiple prior professional opinions were found in the service medical records regarding lack of muscular involvement of the left shoulder by the appellant's initial injury.  It was stated that the initial examination and operative reports substantially documented that the injuries involved only the subcutaneous tissues.  The VA examiner stated that there may be underlying shoulder joint capsule pathology or rotator cuff tenidonpathy which would not be demonstrated on X-ray.  He noted that a MRI of the left shoulder would be of benefit in further evaluation for these possible etiologies.  Other than the previously service-connected scars of the left shoulder, the VA examiner believed it was less likely as not that any other disability of the left shoulder was related to the injury sustained in the motor vehicle accident.  The VA examiner noted that at the time of discharge from the hospital, the VA examiner had obtained full and normal use of the left shoulder.

The appellant had an MRI of the left shoulder in November 2009, after the September 2009 VA examination.  The MRI found that there was no rotator cuff tear, but the inferior glenohumeral ligament appeared redundant and may have been torn, age indeterminate.  There was also moderate acromioclavicular spurring and joint fluid.  As the September 2009 VA examiner specifically noted that an MRI would be of further benefit to evaluate possible etiologies of the left shoulder, and a MRI was conducted after the VA examination, the September 2009 VA examination report and opinion is not adequate to determine whether the appellant has a left shoulder disability that is related to service.

As noted above, in the December 2011 VA addendum to the November 2011 orthopedic surgery note, the VA physician opined that the appellant's left shoulder was secondary to a car accident that occurred while the appellant was in service.  The VA examiner stated that an injury such as this lead to degenerative arthritis and post-traumatic arthritis.  The VA physician indicated that he reviewed the appellant's service record, which showed she sustained the injury to her left shoulder as the result of a car accident.  Although the VA physician indicated that the appellant's left shoulder muscle injury and arthritis were related to the car accident in service, he did not provide a rationale for his opinion.  Consequently, the November 2011 opinion is not adequate upon which to base a decision.

An April 1965 service treatment record from the appellant's hospitalization reflects that the appellant complained of discomfort in the upper portion of the left arm following the automobile accident.  She had a moderate degree of discomfort in the left upper arm.  Radiological examinations of the left shoulder revealed a minimal amount of foreign body debris about the left shoulder area.  Thus, the evidence indicates the appellant injured her left shoulder in service.  As the evidence of record indicates that the appellant may have a left shoulder disability that is related to service, but the appellant has not had an adequate VA examination and opinion, the Board finds that the case must be remanded for a new VA examination and opinion.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the appellant for a VA examination to determine whether it is at least as likely as not that she has a left shoulder disability, to include muscle injury and arthritis, that is related to service.  

The VA clinician is requested to provide a thorough rationale for any opinion provided.  The clinician should review the claims folder and this fact should be noted in the accompanying medical report.

The VA examiner should review the appellant's service treatment records, the September 2009 VA examination report, and the December 2011 VA addendum opinion.
 
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  

If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 

2.  Thereafter, adjudicate the reopened issue on appeal of entitlement to service connection for a left shoulder disability, to include muscle injury and arthritis.  If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond.  The case should then be returned to the Board, as warranted.


The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The appellant should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect her claims, to include denial.  See 38 C.F.R. § 3.655 (2011).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs



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