BVA9507232 DOCKET NO. 93-12 169 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The appellant served on active duty for training from March to September 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1992 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the veteran's application to reopen a previously denied claim for service connection for a right shoulder disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that new and material evidence has been submitted to reopen his claim for service connection for a right shoulder disorder. He says he developed pain in his right shoulder during service as a result of firing an M-1 rifle (due to the recoil effect) and that his right shoulder symptoms have persisted since service. 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 appellant's claims file. 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 the appellant has not submitted new and material evidence to reopen his claim for service connection for a right shoulder disorder. FINDINGS OF FACT 1. In a February 1960 decision, an RO denied the appellant's claim for service connection for a right shoulder disorder; he was notified of that decision and his right to appeal later that month, but he did not initiate a timely appeal. 2. The evidence that has been submitted by the appellant since the February 1960 decision of the RO, denying service connection for a right shoulder disorder, is cumulative in nature, and, when viewed in the context of all of the evidence on file, does not raise a reasonable possibility of a change in the prior adverse decision. CONCLUSION OF LAW The evidence that has been submitted since the February 1960 decision of the RO, denying service connection for a right shoulder disorder, is not new and material; the claim concerning this issue is not reopened; and, the prior unappealed RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Unappealed decisions of the RO are final, with the exception that a claim may later be reopened by the submission of evidence which is both new and material. 38 U.S.C.A. §§ 5108, 7105. The question presented in this case is whether new and material evidence has been submitted since the February 1960 decision of the RO, on the issue of service connection for a right shoulder disorder, which would permit reopening the claim. Manio v. Derwinski, 1 Vet.App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must be relevant to, and probative of, the issue at hand; and, when viewed in the context of all of the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156; Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence that has been submitted by the appellant since the February 1960 decision of the RO, denying service connection for a right shoulder disorder, consists of (1) duplicate copies of his service medical records, (2) a record of an evaluation for right shoulder and neck pain from a private health care provider, and (3) a transcript of his hearing testimony. The service medical records that the appellant submitted are duplicate copies of those that were considered by the RO in its previous denial. Logically, this adds nothing of probative value to the record. Therefore, as this information is not new, it cannot serve as a basis on which to reopen the claim. When the appellant filed an application to reopen his claim in March 1992, he submitted a record (which is not dated) concerning an evaluation that he had received for right shoulder and neck pain at University Family Practice Center. He was described as 52 years old. His DD Form 214 shows he was born in October 1939, so the record refers to an evaluation in 1991 or so. This evidence shows that he was taking medication for pain and that he was experiencing discomfort in this area of his body. However, he had full range of motion in his shoulder, and there was no atrophy or tenderness to touch. An apprehension test (for possible impingement) was positive. The diagnosis was possible shoulder impingement. Physical therapy and medication were prescribed, and he was told to return for follow-up treatment if necessary. The statement of evaluation at University Family Medical Center does not relate the appellant's current right shoulder symptoms to his time spent on active duty for training; that is to say, there is no mention in this statement as to the probable etiology of the appellant's right shoulder pathology. Therefore, even acknowledging that he currently has some problems with his right shoulder, there is still no means of causally linking these symptoms to service, or to any incident therein, especially in light of the fact that this statement was not submitted until some 35 years after his service had ended. It should be noted that more is required to establish service connection than proof of current disability; there also must be (a) evidence of chronic disease or injury in service and (b) a determination of a relationship between the chronic disorder shown in service and current disability. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Watson v. Brown, 4 Vet.App. 309, 314 (1993). Speaking parenthetically, the Board notes that the RO acknowledged in its previous denial of the appellant's claim that he was treated during service for right shoulder pain. However, when examined in service, he had no limitation of motion or tenderness in his shoulder, and no organic diagnosis was ever made. Also, at his separation examination, no defects were noted, and X-rays taken at a VA examination in 1960 were likewise negative (as was the clinical portion of that examination, during which he specifically denied any history of fall, strain, or injury). Based on those findings, the RO concluded that any symptoms that were demonstrated during service were not of a chronic nature and, therefore, not a sufficient basis on which to establish service connection. At his December 1992 hearing, the appellant claimed that he developed pain in his right shoulder during service as a result of firing an M-1 rifle (he claims that the recoil/kickback motion of the weapon when fired put stress on his shoulder). He pointed out that he was treated several times during service for right shoulder pain, consisting primarily of heat applications. He said that doctors in service never made a diagnosis, even though he mentioned his right shoulder problems to them when examined at time of discharge. He said they told him to file a claim with VA after service, which he did, but when examined, VA doctors told him he needed the support of three witnesses. He said he tried to appeal the 1960 RO decision but was told that he could not appeal it. He denied receiving any treatment from a doctor for right shoulder symptoms after service prior to 1992, other than when he was examined by VA in 1960 in connection with his original claim, and he said he had mostly used liniment and other means of self treatment for this disorder. He insisted, nevertheless, that his symptoms had persisted since service and that, when examined at University Family Practice Center, they wanted to conduct neurological studies of his shoulder (he claimed that his lack of insurance prevented him from obtaining this and other treatment that he needed after service). He said he had been treated by VA doctors during the last two years, but that they had told him that nothing was wrong with his shoulder. He denied having injured his right shoulder in the past, and he indicated that he had had operations on his low back and knees. The appellant has not submitted any probative evidence which supports the allegations he made at his hearing to the effect that he was somehow "dissuaded" from appealing the original RO decision. This flies in the face of other evidence on file; most notably, the RO letter in February 1960 notifying him of its decision and of his right to appeal, if he so chose. Finally, although some of the appellant's testimony is new, it is not material because it does not raise a reasonable possibility of a change in the prior adverse decision. Essentially, he states that he has had vague right shoulder symptoms ever since service. However, he admits that he sought no medical attention until 1992, and that there is still no diagnosis of any disability. There is no possibility that this information, viewed in the context of all the evidence, would change the previous outcome. The essence of the other testimony proffered by the appellant at his hearing was merely a restatement of assertions that he had earlier made, when the RO denied his claim previously. Therefore, this evidence is not new and cannot be used to reopen the claim. See Reid v. Derwinski, 2 Vet.App. 312 (1992). In sum, the appellant has not submitted new and material evidence to reopen his claim for service connection for a right shoulder disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and a reopening of the claim is not warranted. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The application to reopen the claim for service connection for a right shoulder disorder is denied. J. E. DAY 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.