BVA9503791 DOCKET NO. 93-04 254 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a right shoulder disorder. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for left carpal tunnel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran served on active duty from June 25,1965 to June 30, 1988. This matter comes before the Board of Veterans' Appeals (Board) from a January 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. It is before the Board for appellate consideration at this time. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended, by and on behalf of the veteran, that he developed a chronic right shoulder disorder and left carpal tunnel syndrome during service and that service connection for these disabilities is therefore warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence to reopen the veteran's claims of entitlement to service connection for a right shoulder disorder and left carpal tunnel syndrome has been received and the claim is reopened. FINDINGS OF FACT 1. Service connection for a right shoulder disorder and left carpal tunnel syndrome were denied by the RO in an unappealed rating decision of December 1988. 2. Evidence added to the record since that time includes a private medical statement from Robert C. Kurtz, D.C., private clinical records, and testimony given during a hearing at the RO in May 1991,which is not cumulative of evidence previously of record and is sufficient, when viewed in the context of the evidence previously of record, to establish a reasonable possibility of a different outcome. CONCLUSION OF LAW Evidence received since the December 1988 rating action denying service connection for left carpal tunnel syndrome and a right shoulder disorder is new and material, and the veteran's claim has been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evidence of record when the RO denied service connection for a right shoulder disorder and left carpal tunnel syndrome in 1988 included the service medical records which revealed no complaints or findings indicative of left carpal tunnel syndrome. In October 1986, the veteran was seen with complaints of neck and shoulder girdle pain. Findings included tenderness in the right upper trapezius; the assessment was myofascial neck pain. In March 1987, he was seen with similar complaints. He received a physical therapy consultation in September 1987 with complaints of right shoulder and wrist pain of one months duration. Active and passive range of shoulder motion was full with crepitus and pain noted on passive motion and there was tenderness in the shoulder tuberosity with resistance to abduction. Assessments included possible rotator cuff tear. The following day, the veteran was again seen with complaints of gradually progressive right shoulder pain of several months duration. Range of shoulder motion was limited and there was mild to moderate subacromioclavicular crepitance; no instability was noted. An arthrogram of the right shoulder was normal with no evidence of rotator cuff laceration. The impressions included chronic bursitis with secondary adhesive capsulitis and rotator cuff imbalance. The shoulder bursa was injected with good relief. On examination prior to separation from service, the upper extremities were evaluated as normal. On VA examination in September 1988, a history of bursitis in the right shoulder, diagnosed in 1987, was reported. The veteran stated that it was only painful in cold weather. Range of motion in the right shoulder was entirely normal. The diagnosis was bursitis of the right shoulder. During the examination the veteran also gave a five week history of numbness and tingling in the left second , third ,and fourth digits along with the entire palmar and dorsal surfaces of the hand. Electromyographic and nerve conduction studies showed findings compatible with a diagnosis of bilateral carpal tunnel syndrome. Evidence added to the record since the December 1988 rating action includes a VA physical examination of November 1990 during which the veteran complained of pain in the right shoulder and loss of feeling and strength in the hands. He gave a history of shoulder symptoms since 1985 with a "click" and "slip" upon forward flexion and abduction of his arm to hold a pistol. After evaluation the assessments of bilateral carpal tunnel syndrome and biceps tendonitis of the right shoulder were rendered. In a statement dated in March 1991, Dr. Richard D. Esenberg, D.C., reported treating the veteran for the previous several months. The veteran was reported to have a chronic acromo- clavicular joint condition. X-ray of the shoulder showed sclerosing and loss of joint space with evidence of myospasms. In April 1991, private clinical records were received which showed treatment from September 1988 to February 1991. In September 1988, the veteran was seen for a work related injury to the left forearm incurred when his hand slipped off a wrench and he felt something snap in the dorsum of his forearm with subsequent swelling and discomfort. Retrospectively, he complained of numbness in the median nerve distribution of the left hand for the last few weeks and months with difficulties picking up small objects and nighttime pain radiating into the elbow. The assessment was extensor muscle and tendon injuries, left forearm and carpal tunnel syndrome. In August 1990, he was seen for right shoulder pain after heavy lifting at work. He also complained of intermittent paresthesia in the right arm. The assessment was trapezius muscle strain on the right. During a hearing before a hearing officer at the RO in May 1991, the veteran related his right shoulder disorder and carpel tunnel syndrome to a 1978 inservice injury which occurred while attempting to repair a radio in a moving armored vehicle. A similar injury to the left hand in 1985 was reported He also testified that he had had frequent problems with weakness and tingling in the hands while traveling as a member of the U.S. Air Force pistol team. He also related his right shoulder problem to difficulties with his neck and to this duty. In a statement dated in September 1992, Dr. Robert C. Kurtz, D.C., reported that the veteran was seen on June 4, 1988 and again on August 4, 1991 with complaints of right shoulder pain and right hand numbness and weakness. He also gave a history of bilateral numbness in the hands. After evaluations, the diagnostic impression was that the veteran suffered a chronic neck, shoulder, arm and hand syndrome due to repetitive long duration shooting activities. The issues before the Board are whether new and material evidence has been submitted to reopen claims of service connection for a right shoulder disorder and for left carpal tunnel syndrome. New evidence is evidence which is not merely cumulative of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Material evidence is that which is sufficiently relevant and probative of the issue at hand to establish a reasonable possibility that the outcome would differ when the new evidence is considered in light of all the evidence. Id. Further, for purposes of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The veteran, during his recent hearing, provided testimony to the effect that he had frequent complaints of pain and weakness in the right shoulder and weakness and numbness in both hands during active duty as a result of injuries sustained during service and as a result of his activities as a member of a pistol shooting team. Moreover, clinical records received subsequent to the December 1988 rating decision show that he received treatment a few month after discharge for carpal tunnel syndrome in the left hand and gave a history of symptoms indicative of this disorder which could date to the period prior to his discharge from service. Finally, the record contains a statement from a private chiropractor dated in September 1992 which, while vaguely worded, appears to show that the veteran had symptoms of a chronic right shoulder disorder and a history of complaints of left carpal tunnel syndrome on June 4, 1988, more than three weeks prior to his discharge from service. This evidence is relevant and probative of the issues of service connection for a right shoulder disorder and left carpal tunnel syndrome and, if believed, presents a reasonable possibility of a change in outcome of the prior unappealed rating action of December 1988. Having determined that new and material evidence has been added to the record, the veterans claims for service connection for a right shoulder disorder and for left carpal tunnel syndrome are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and Material evidence having been submitted, the veteran's claims of entitlement to service connection for a right shoulder disorder and left carpal tunnel syndrome are reopened. REMAND Having determined that the veteran's claims of entitlement to service connection for a right shoulder disorder and left carpal tunnel syndrome have been reopened, the merits of these claims must be evaluated in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 140, 146 (1991). However, before these issues are again adjudicated by the RO, the Board believes that further development should be undertaken in order to assist the veteran in the development of his claim as required by 38 U.S.C.A.5107 (a) (West 1991). The Board particularly notes that a liberal reading of the record indicates that the veteran is also claiming service connection for his right shoulder disorder as secondary to his service connected cervical strain; this aspect of the veteran's claim has not been considered by the RO. Accordingly, this case is remanded to the RO for the following actions. 1. The RO should contact the veteran and ask that he identify the names addresses, and approximate dates of treatment of all VA and non VA health care providers who have treated him at any time since service for his right shoulder disorder and his left carpal tunnel syndrome. Then, with any necessary authorizations from the veteran, the RO should attempt to obtain copies of all treatment records identified by the veteran which are not currently in the claims folder. These records should include those of Robert C. Kurtz, D.C.,reflecting treatment on June 4, 1988 and August 3, 1991 as well as any subsequent treatment; all records from The Creek Clinic in Johnson Creek, Wisconsin; Richard D. Esenberg, D.C.,of Jefferson, Wisconsin; and the VA medical Centers in Madison and Milwaukee, Wisconsin. All records obtained should be associated with the claims folder. 2. Then, the veteran should be afforded a VA examination by a board certified orthopedist, if available, to ascertain the nature and severity of any right shoulder disability and left carpal tunnel syndrome. All indicated special studies, including range of motion test, EMG and X- rays, should be performed and all pertinent clinical findings reported in detail. The claims folder must be made available to the examiner prior to the evaluation so that the clinical record can be studied in detail. At the conclusion of the evaluation, the examiner should express his opinion, with complete rational, as to whether it is at least as likely as not that the veteran's current right shoulder symptomatology is medically related to the complaints regarding the right shoulder noted during service in September 1987, any right shoulder symptoms reported by Dr. Kurtz on June 4, 1988, and/or to his service connected cervical strain. 3. Then, in light of the evidence obtained pursuant to the requested development, the RO should adjudicate the issue of entitlement to service connection for a right shoulder disorder and left carpal tunnel syndrome on a de novo basis. The RO should also consider service connection for a right shoulder disorder as secondary to the veteran's service connected cervical spine disability. If the benefits sought on appeal are not granted to the veteran's satisfaction, a Supplemental Statement of the Case discussing all the relevant evidence and containing adequate reasons and basis should be issued and the veteran and his representative afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for its further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is so notified by the RO. F. JUDGE FLOWERS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.