BVA9505815 DOCKET NO. 93-12 557 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Dutzman, Associate Counsel INTRODUCTION The veteran had active service from April 1951 to April 1954. He was a prisoner of war (POW) from April 1952 to August 1953. In a decision dated June 1987, the Board of Veterans' Appeals (Board) denied entitlement to service connection for a bilateral shoulder impingement syndrome. This matter arises from an October 1992 rating decision in which the regional office (RO) declined to reopen the veteran's claim for entitlement to service connection for a bilateral shoulder disability on the ground that new and material evidence had not been submitted which would justify reopening the claim. The claims file notes that the veteran is a junior "Jr.," however the computer generated records do not include the suffix. The regional office should ensure that the file and the master record are consistent. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his internment in a POW hard labor camp was the direct cause of his bilateral shoulder disability. He further contends that he reported his shoulder problem to the physician who examined him after his release from captivity but that he was told nothing could be done for him. 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. 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 veteran has entered a new claim for service connection for arthritis of the shoulders. FINDINGS OF FACT 1. The Board denied entitlement to service connection for a bilateral shoulder impingement syndrome. 2. Service connection for arthritis of the shoulders was not previously denied. CONCLUSIONS OF LAW 1. The Board's June 1987 decision denying service connection for a bilateral shoulder impingement syndrome is final. 38 U.S.C.A. §§ 7103, 7104 (West 1991); 20 C.F.R. § 20.1100 (1994). 2. The claim for service connection for arthritis of the shoulders is a new claim. 38 C.F.R. § 3.160 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A claim which is denied and which is final can be reopened only with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991). A decision on whether there is new and material evidence sufficient to reopen a previously denied claim is based upon a review of all evidence submitted since the last final denial. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994). In this case the last final denial of service connection for a bilateral shoulder impingement syndrome on the merits was the Board's June 1987 decision. The Court has held that when an intervening change in law or regulation creates a new basis of entitlement to a benefit, a de novo adjudication of the claim must be afforded. Spencer v. Brown, 4 Vet.App. 283, 289 (1993). Similarly, when the same law and regulations used previously may not support the current issue, there may be a new claim. In one case, the Court noted that there was a new claim for arthritis of the knee when service connection had been previously denied for a generic knee disability. Odiorne v. Principi, 3 Vet.App. 456 (1992), citing Douglas v. Derwinski, 2 Vet.App. 435, 439 (1992); EF v. Derwinski, 1 Vet.App. 324, 326 (1991). Evidence received subsequent to the Board's 1987 decision includes the results of VA examination conducted in August of 1992. Physical examination of the shoulders revealed limitation in ROM and tenderness over the acromioclavicular joint. X-rays were interpreted as showing degenerative joint disease in both shoulders. We note that the 1987 Board decision did not consider entitlement to service connection for a shoulder disability on a presumptive basis. Rather than being subject to the finality of a prior decision, the Board concludes that the veteran has filed a new claim that is subject to de novo review. ORDER The veteran has filed a new claim for service connection for arthritis of the shoulders. REMAND The evidence shows that the veteran was a POW for more than 30 days. Given the veteran's unrefuted history of repeated trauma to his shoulders as a POW and the findings of arthritis on x-ray examination in both 1984 and 1992, the Board finds the veteran should be examined for the purpose of determining whether the veteran has traumatic arthritis. Accordingly, the case is remanded for the following: 1. The veteran should undergo an examination by a rheumatologist. The veteran's claims file is to be made available prior to conducting the examination. The examiner should obtain a detailed history regarding the shoulders. Thereafter, the examiner should render an opinion as to the etiology of the shoulder arthritis. Specifically, the examiner should rule in or rule out traumatic arthritis. The examiner should detail the reasons for the decision. 2. The regional office should adjudicate the new claim of entitlement to service connection for arthritis of the shoulders. H. N. SCHWARTZ 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.