Citation Nr: 0000521 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-00 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD W. Mulligan, Associate Counsel INTRODUCTION The veteran had active service from December 1942 to August 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1997 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which determined that the veteran had not submitted new and material evidence to reopen his claim of service connection for a right shoulder disorder. FINDINGS OF FACT 1. In April 1987, the RO denied the veteran's claim for service connection for a right shoulder condition; the veteran did not appeal this decision. 2. The evidence submitted since the April 1987 decision was not previously submitted to agency decision makers, is neither cumulative nor redundant, and bears directly and substantially on the issue under consideration, but is not by itself nor in conjunction with evidence previously submitted, so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The April 1987 rating decision, which denied the veteran's claim for service connection for a right shoulder disorder, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (1999). 2. The evidence received since the April 1987 rating decision is new but not material, therefore the veteran's claim for service connection for a right shoulder disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 1987, the RO denied the veteran's claim for service connection for a right shoulder condition and advised the veteran that it was not shown to have been incurred in or aggravated by service or in any way related to the static disabilities of his left arm and forearm. The RO considered the veteran's service medical records and post service VA treatment reports. The veteran did not appeal that decision within one year, and it became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (1999). In July 1997, the veteran filed a claim for service connection for a right shoulder disorder, which was denied by an RO rating decision in November 1997. Claims that have previously been denied and are final may only be reopened if new and material evidence has been submitted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a). The Court has set forth a three-part analysis to be applied when a claim to reopen is presented. Elkins v. West, 12 Vet.App. 209 (1999) (en banc); Winters v. West, 12 Vet.App. 203 (1999) (en banc). The first step is to determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. Winters at 206. If so, the second step requires a determination of whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Id. If the claim is not well grounded, the adjudication process must halt, despite reopening, because a claim that is not well grounded cannot be allowed. Id. If the claim is well grounded, then the VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, an adjudication of the merits of the claim. Id. In determining whether new and material evidence has been presented, "new" evidence is that which has not been previously submitted to agency decision makers, and is neither cumulative nor redundant. 38 C.F.R. § 3.156(a); see generally Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). "Material" evidence is that which bears directly or substantially on the specific matter under consideration, and which, by itself or in conjunction with other evidence previously submitted, is so significant that it must be considered in order to fairly decide the merits of that claim. 38 C.F.R. § 3.156(a). The following evidence was received after the April 1987 rating decision: a report of a September 1997 VA examination, and a transcript of the veteran's February 1998 hearing before the RO. These items were not previously submitted to agency decision makers and are neither cumulative nor redundant. Thus, they are new. They are not, however, material. The VA examination record noted the veteran's reported use of firearms during his period of active service and complaints of shoulder pain 2-3 months after service as well as his stroke two years prior to the examination. Examination of the shoulder revealed no swelling or deformity and range of motion was described. The diagnosis was status post cerebrovascular accident with normal shoulder x-ray. When considered alone or in conjunction with all of the evidence of record, the report is not so significant that it must be considered in order to decide fairly the merits of the veteran's claim. The report does not relate the veteran's right shoulder complaints to service or to any service- connected disability, which was the basis of the prior RO denial. As such, the evidence is not "new and material" as contemplated by law and fails to provide a basis upon which to reopen the veteran's claim for service connection for a right shoulder disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. At his hearing before the RO, the veteran discussed his use of firearms during his period of active service and the pain in his right shoulder. Specifically, the veteran stated that his shoulder pain began during his period of active service. When considered alone or in conjunction with all of the evidence of record, the veteran's testimony is not so significant that it must be considered in order to decide fairly the merits of the veteran's claim. To establish a link between the veteran's shoulder disorder and his period of active service or a service-connected disability, competent medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Caluza v. Brown, 7 Vet.App. 498, 504 (1995). The record fails to show that the veteran has any medical training or expertise; therefore, as a lay person, his opinion regarding the origin of his right shoulder complaints is not sufficient to establish medical causation. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (holding that laypersons are not competent to offer medical opinions). See also Moray v. Brown, 5 Vet.App. 211, 214 (1995) (holding that where resolution of an issue turns on a medical matter, lay evidence, even if considered "new," may not serve as a predicate to reopen a previously denied claim). As such, the evidence is not "new and material" as contemplated by law and fails to provide a basis upon which to reopen the veteran's claim for service connection for a right shoulder disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Simply put, what was missing at the time of the April 1987 decision, and what continues to be missing from the veteran's claim, is evidence demonstrating that a current right shoulder disorder was either incurred or aggravated by the veteran's period of service or is secondary to the veteran's service-connected left arm and forearm disability. Based on the foregoing, the Board concludes that no new and material evidence has been presented to reopen the previously disallowed claim, and therefore, the prior decision remains final. Accordingly, the benefit sought on appeal must be denied. ORDER New and material evidence to reopen the veteran's claim not having been submitted, service connection for a right shoulder disorder remains denied. STEVEN L. COHN Member, Board of Veterans' Appeals