Citation Nr: 0836441 Decision Date: 10/23/08 Archive Date: 10/31/08 DOCKET NO. 06-16 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a sinus disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder condition, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the above claims. The issue of service connection for a right shoulder condition 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. The veteran's claim of entitlement to service connection for a sinus disorder was denied by a January 1972 rating decision. He did not appeal. 2. The evidence submitted since January 1972 does not relate to a necessary unestablished fact and fails to raise a reasonable possibility of substantiating the veteran's claim for service connection for a sinus disorder. 3. The veteran's claim of entitlement to service connection for a right shoulder condition was denied by a December 1986 rating decision. He did not appeal. 4. The evidence received since the December 1986 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the veteran's claim for service connection for a right shoulder condition. CONCLUSIONS OF LAW 1. The January 1972 rating decision that denied entitlement to service connection for a sinus disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence has not been submitted since the January 1972 rating decision that denied entitlement to service connection for a sinus disorder, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The December 1986 rating decision that denied entitlement to service connection for a right shoulder condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 4. Evidence received since the December 1986 rating decision is new and material; the claim of entitlement to service connection for a right shoulder condition is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims to reopen finally disallowed claims, the VCAA requires notice of the evidence needed to reopen the claim, as well as the evidence necessary to establish the underlying benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in March 2005 informed the veteran of all three elements required by 38 C.F.R. § 3.159(b) as stated above. This letter also included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why his sinus disorder claim was previously denied. Consequently, the Board finds that adequate notice has been provided regarding the veteran's sinus disorder claim. To the extent that the veteran's right shoulder condition claim is reopened, the Board finds that there can be no possibility of prejudice to the veteran under the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006). As to the duty to assist, the RO has obtained the veteran's service medical records and private treatment records. In claims to reopen previously denied claims, assistance does not include providing a medical examination or obtaining a medical opinion unless new and material evidence has been submitted. 38 C.F.R. § 3.159(c)(4)(i). Here, no examination is afforded the veteran because, as discussed below, new and material evidence regarding his sinus disorder claim has not been submitted. Therefore, no further examination seeking an opinion regarding this condition is necessary to satisfy the duty to assist. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. II. New and Material Evidence Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 3.156 (2007). Evidence is new if it has not been previously submitted to agency decision makers. 38 C.F.R. § 3.156(a) (2007). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A. Sinus disorder The veteran's claim of entitlement to service connection for a sinus disorder was denied by a January 1972 rating decision. At the time of the January 1972 decision, the evidence of record included the veteran's service medical records and an October 1971 VA examination report. The veteran's service medical records indicate that there were no complaints or findings of a sinus disorder during service. The veteran had normal sinuses at his separation examination in January 1971. The October 1971 VA examination report indicates that the veteran had no nose, sinus, mouth, or throat pathology. The claim was denied in January 1972 on the basis that there was no evidence of a sinus disorder while in service and no diagnosed sinus condition on examination. The veteran was notified of this decision and of his appellate rights by a letter dated January 19, 1972. He did not appeal. Therefore, the January 1972 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The veteran filed a claim to reopen in January 2005. As noted above, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 3.156 (2007). Evidence obtained since the January 1972 rating decision includes treatment records from Anibal Navarro Badui, M.D. and Tuilo L. Ortiz, M.D., as well as an April 2001 sleep apnea test report, which revealed obstructive sleep apnea. In November 2002, Dr. Ortiz reported that computed tomography (CT) scan results showed prominent turbinates, mild deviation of the nasal septum, and thickening of the fronto maxillary antra and ethmoidal sinuses, but no bony erosions or masses at the sinuses. Dr. Ortiz diagnosed the veteran with chronic rhinosinusitis and nasal septum deviation, but did not provide an opinion as to the etiology of these conditions. In January 2005, and again in August 2005, Dr. Badui reported that the veteran had a history of sleep apnea, nasal obstruction, and post nasal drips. Dr. Badui also reported that the veteran had been treated for allergic rhinitis, chronic sinusitis, and nasal septum deviation since November 2002, including a nasal septoplasty in January 2003 that improved his nasal breathing. Dr. Badui noted the veteran's report of receiving treatment during service for nasal breathing impairment and diagnosed him with allergic chronic rhinosinusitis. As noted above, the veteran's sinus disorder claim was denied in January 1972 on the basis that there was no evidence of a sinus disorder during service and no evidence of a sinus disorder upon VA examination in 1971. The evidence submitted since January 1972 is new in that it had not previously been submitted. However, this evidence is not material because it does not tend to show that the veteran's current sinus disorder was incurred during, or caused by, his military service. The newly associated medical records show only that the veteran was diagnosed with sinus problems more than 30 years after separation from service. There is no competent evidence of record relating a current sinus disorder to the veteran's active service. Accordingly, the new evidence of record fails to provide a reasonable possibility of substantiating the veteran's claim for service connection for a sinus disorder, and therefore does not provide a basis for reopening the claim. See 38 C.F.R. § 3.156 (2007). As new and material evidence has not been submitted, the veteran's petition to reopen his previously denied claim for entitlement to service connection for a sinus disorder is denied. B. Right Shoulder Condition The veteran's claim of entitlement to service connection for a right shoulder condition was denied by a December 1986 rating decision. At the time of that decision, the evidence of record included the veteran's service medical records, a VA examination reported dated in October 1971, and an October 1986 letter from Aciscolo M. Marxuach, M.D. The veteran's service medical records indicate that, in June 1969, the veteran dislocated his shoulder and had shoulder joint pain. The October 1971 VA examination report reveals that the veteran reported off-and-on pain in his right shoulder, which he dislocated once in service with no recurring dislocations. The examiner reported that his right shoulder was negative for a current disability and diagnosed him with a history of shoulder dislocation. Dr. Marxuach's October 1986 letter reveals that the veteran sought treatment for right shoulder pain in March 1985 and that x-rays taken of the right shoulder in May 1985 were normal. The veteran's claim to reopen his right shoulder condition claim was denied in December 1986 on the grounds that the evidence failed to establish that his right shoulder condition was incurred in, or aggravated by, service. The veteran was notified of this decision and of his appellate rights by a letter dated January 9, 1987. He did not appeal. Therefore, the December 1986 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The veteran filed a claim to reopen in January 2005. As noted above, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 3.156 (2007). Evidence obtained since the December 1986 rating decision includes treatment records for right shoulder pain from 1) Hato Rey Orthopedic Associates dated from October 2004 to January 2005, 2) Centro Terapia Fisica Rio Grande dated in January 2006, and 3) an unidentified doctor dated from October 2005 to November 2005; a November 2004 treatment note from Jose Hernandez Bonilla, M.D. regarding magnetic resonance image (MRI) results; a September 2005 letter from Evelyn Matta Fontanet, M.D. regarding his rotator cuff tear of the right shoulder; and additional VA records dated in 1986. Significantly, during his numerous treatments for right shoulder pain, the veteran reported that such pain had continued since his in-service right shoulder dislocation in 1969. As discussed above, the credibility of the evidence is to be presumed for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, the veteran's treatment records indicate that he has been diagnosed with status post contusive lesion of the right shoulder joint and a provisional diagnosis of traumatic peritendonitis. The veteran's claim was previously denied because the evidence did not show that his shoulder condition was incurred in, or aggravated by, service. The evidence submitted since December 1986 shows that the veteran has reported a continuity of symptomatology since his 1969 in- service shoulder dislocation and that he has been diagnosed with status post contusive lesion of the right shoulder joint. This evidence is new in that it had not previously been submitted. It is also material insofar as it relates to a previously unestablished fact necessary to substantiate the veteran's claim, namely a relationship between his current right shoulder condition and his in-service right shoulder dislocation. The additional evidence being both new and material, the claim for service connection for a right shoulder condition is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having not been submitted, the application to reopen a claim of entitlement to service connection a sinus disorder is denied. New and material evidence having been submitted, the claim of entitlement to service connection for a right shoulder condition is reopened. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The veteran contends that his right shoulder DJD and rotator cuff tear are related to his in-service right shoulder dislocation in 1969. As noted above, service medical records indicate that, in June 1969, the veteran dislocated his shoulder and had pain in his shoulder joint. Post service, at his October 1971 VA examination, the veteran reported continuing pain in his right shoulder. The veteran began seeking private treatment with Dr. Marxuach for right shoulder pain in March 1985. Treatment records from Hato Rey Orthopedic Associates are largely illegible, but indicate that the veteran received treatment for a right shoulder condition from October 2004 to January 2005. Treatment records from Centro Terapia Fisica Rio Grande indicate that, in January 2006, the veteran again sought treatment for right shoulder pain. In October 2005, an unidentified doctor reported that the veteran was treated for pain and weakness in his right shoulder that began after shoulder trauma during service around 1969; the doctor diagnosed him with degenerative joint disease (DJD) of the right shoulder AC joint. In November 2004, Dr. Bonilla reported that the veteran was referred to his hospital because he was still having pain after a fall during active duty. Dr. Bonilla reported that a November 2004 MRI revealed partial tears involving the supraspinous and subscapularis tendons with fluid collection along the coracohumeral ligament and degenerative changes of the AC joint. Finally, in a September 2005 letter, Dr. Fontanet reported that the veteran had a rotator cuff tear of the right shoulder that had caused pain for several years. She noted that the veteran was treated at a VA Medical Center several years earlier, but that the pain never improved. To date, the veteran has not been provided with a VA medical examination assessing whether his right shoulder condition was incurred during or caused by active duty, including a 1969 shoulder dislocation. Under the VCAA, VA is obliged to provide a medical examination and/or get a medical opinion when the record contains competent evidence that the claimant has a current disability; the record indicates that the disability, or signs and symptoms of disability, may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While there is competent evidence of record of an in-service right shoulder dislocation, as well as a current diagnosis of DJD of the right shoulder AC joint and a rotator cuff tear of the right shoulder, a medical opinion regarding the etiology of these conditions is necessary to make a determination in this case. Additionally, as noted above, the veteran reported during September 2005 treatment with Dr. Fontanet that he had received VA treatment for his right shoulder pain. These records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Request the veteran to identify any VA medical centers that have treated his right shoulder condition and make arrangements to obtain a complete copy of the veteran's treatment records from the VA Medical Centers identified. 2. Thereafter, schedule the veteran for a VA orthopedic examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to the diagnosis, date of onset, and etiology of any right shoulder condition found to be present (i.e., degenerative joint disease of AC joint, tendonitis, and/or rotator cuff tear). The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right shoulder condition had its onset during active service or is related to any in- service event, disease, or injury, including the June 1969 dislocation. In doing so, the examiner should consider the lay evidence of record regarding a continuity of symptomatology since service. The examiner should provide a comprehensive report including complete rationales for all opinions and conclusions reached. 3. Finally, readjudicate the veteran's claim on appeal. If the claim remains denied, provide the veteran with a supplemental statement of the case and allow an appropriate time for response. 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). This claim must be afforded expeditious treatment. The law requires that all claims 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. 2008). ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs