Veteranclaims’s Blog

August 8, 2021

Single Judge Application; Wait v. Wilkie, 33 Vet.App. 8, 17 (2020); The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.” In this respect, the veteran’s statement does not suggest, even remotely, that he has a left shoulder disability that caused functional impairment or affected his earning capacity. R. at 1199;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-9062
ANDREW M. THORPE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.


TOTH, Judge: Retired Army veteran Andrew M. Thorpe appeals a September 2019 Board decision, which determined that new and material evidence had not been received to reopen a service-connection claim for a left shoulder disorder.1 He argues that (1) the Board’s new and material evidence determination was clearly erroneous, and (2) the Board erred in relying on an inadequate medical examination. For the reasons set forth below, the Court affirms.
I. BACKGROUND
Mr. Thorpe served from 1986 to 2007. During his last year of service, he filed a VA compensation claim for a “shoulder injury” that he said occurred in July 2000. R. at 1871. In 2008, the regional office (RO) denied service connection for both a left and right shoulder disorder. The RO decision listed in the “evidence” section the veteran’s service treatment records (STRs) from November 3, 1985, until April 18, 2006. R. at 1770. And based on these records, the RO concluded that there was no evidence of a current left shoulder disability. Mr. Thorpe did not pursue an appeal and the 2008 decision became final.
1 The Board also reopened and remanded a claim for service connection for a left knee disorder and remanded a claim for service connection for bilateral pes planus. Because remands are not final decisions, the Court has no jurisdiction over these matters. See Dallman v. Wilkie, 33 Vet.App. 101, 105 (2020).
2
In February 2017, Mr. Thorpe filed a claim for a right and a left “shoulder condition.” R. at 1198. In support of his claim, he wrote: “During Airborne training I suffered a dislocated shoulder while performing training but was reluctant to report the incident for fear of being expelled from the Airborne Academy.” R. at 1191. Attached to his claim, he submitted a buddy statement from a retired master sergeant that said: “[Mr. Thorpe] sustained a dislocated shoulder injury while conducting Parachute Landing Fall exercise.” R. at 1189.
In April 2017, VA afforded Mr. Thorpe a shoulder examination, which directed the examiner to answer whether the veteran had a left shoulder condition that was “at least as likely as not incurred in or caused by” the “parachute incident during service.” R. at 697-8. Under the medical history section, the examiner noted that the veteran reported injuring his right shoulder in 1995 “during parachute landing training in Georgia after he landed on it.” R. at 858. The examiner further stated that the veteran “did not report left shoulder pain/injury, his claim was based on his right shoulder.” R. at 883. Thereafter, the RO issued a rating decision that reopened the claim and continued the denial of service connection for a left shoulder injury but granted service connection and a 20% evaluation for a right shoulder strain.
In the September 2019 decision, the Board determined that the additional evidence received since the July 2008 rating decision did not raise the reasonable possibility of establishing a left shoulder disorder and therefore concluded that the left shoulder claim had not been reopened.2 The Board noted that although Mr. Thorpe’s STRs were added to the file in June 2013, these records were duplicative of evidence that was already in the record at the time of the July 2008 rating decision. With respect to new medical treatment records that had been received since the July 2008 decision, the Board determined that this evidence did not “contain complaints of, treatment for, or a diagnosis of a left shoulder disorder.” R. at 8. The Board deemed a March 2017 buddy statement to be new, but non-material, because it relayed that Mr. Thorpe dislocated an unspecified shoulder, and the veteran subsequently clarified that it was his right shoulder, not his left, that was dislocated in service. R. at 9. This appeal followed.
2 The Board is authorized to conduct its own analysis and determine, contrary to the RO, that new and material evidence has not been submitted to reopen a claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
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II. ANALYSIS
Mr. Thorpe argues that the Board clearly erred in determining that he did not submit new and material evidence with respect to his left shoulder claim. He further argues that the 2017 exam was inadequate because the examiner failed to evaluate his left shoulder, despite an explicit request to do so.
A. New and Material Evidence
The Secretary will reopen a previously denied claim upon the submission of new and material evidence. Shade v. Shinseki, 24 Vet.App. 110, 113 (2010). “New” is defined as existing evidence not previously submitted to agency decisionmakers, and “material” is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2020). New and material evidence can be neither cumulative nor 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade, 24 Vet.App. at 117.
The Court reviews the Board’s determination whether new and material evidence has been presented under the “clearly erroneous” standard of review. Id. at 115. “A factual finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Sharp v. Shulkin, 29 Vet.App. 26, 31 (2017).
The Court is not convinced that the record contains new and material evidence, which individually or together, raises a reasonable possibility of substantiating the veteran’s left shoulder claim. Mr. Thorpe points to STRs that were added to his file in June 2013. However, the Board determined that this evidence was “duplicative of evidence already of record at the time of the July 2008 rating decision.” R. at 8. This is so because the 2008 rating decision expressly listed “[s]ervice treatment records dated November 3, 1985 to April 18, 2006” among the evidence of record. R. at 1770. Resisting this reasoning, Mr. Thorpe argues that the initial rating decision did not discuss or consider this evidence. However, whether the RO properly assessed record evidence is an issue that is not currently before the Court and which should have been pursued through direct appeal. It is well settled that new evidence means “evidence not previously submitted to agency decisionmakers,” and thus, the duplicative STRs cannot constitute new evidence under § 3.156(a).
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In addition, Mr. Thorpe points to the 2017 buddy statement, R. at 1189, and a 2017 statement that he made in support of his claim, R. at 1191-92, as new and material evidence of a left shoulder injury. However, the buddy statement asserts only that the veteran “sustained a dislocated shoulder injury” while conducting a “Parachute Landing Fall exercise.” R. at 1189. It does not specify which shoulder he injured. Likewise, the 2017 statement submitted by the veteran refers only to “a dislocated shoulder.” R. at 1191-92. This evidence does not raise a reasonable possibility of substantiating the veteran’s left shoulder claim. Mr. Thorpe also claims entitlement to—and has been awarded service connection for—a right shoulder injury. R. at 784. The primary question on appeal is whether the veteran submitted new and material evidence indicating that he had a left shoulder injury in addition to a right shoulder injury. These two statements do not constitute such evidence.
Mr. Thorpe next points to an addendum to his supplemental claim, in which he stated that he injured his left shoulder during training (“I request the VA open a claim for disability compensation benefits for a left shoulder condition. I was injured during training, but did not report my injury in order to not jeopardize my position in the service.”). R. at 1199. However, this statement does not speak to the basis for the RO’s 2008 denial, namely absence of a left shoulder disability. It does not describe the veteran’s symptomology or suggest that he experienced pain as a result of his left shoulder condition. The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.” In this respect, the veteran’s statement does not suggest, even remotely, that he has a left shoulder disability that caused functional impairment or affected his earning capacity. R. at 1199. Accordingly, this statement does not raise a reasonable possibility of substantiating his left shoulder claim and is not new and material evidence.
As for additional medical records submitted since the 2008 rating decision, the Board concluded that they “do not contain complaints of, treatment for, or a diagnosis of a left shoulder disorder.” R. at 8. This is correct. See also R. at 1425-51 (August 2013 Medical Treatment Record- Non-Government Facility); R. at 1385-95 (September 2013 VA Back Examination); R. at 1372-84 (January 2014 VA 10-100 Hospital Summary); R. at 1201-70 (February 2017 CAPRI); R. at 790-94 (November 2006 treatment records); R. at 706-70 (July 2017 CAPRI); R. at 451-53
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(October 2018 Medical Treatment Record- Non-Government Facility); R. at 266-350 (November 2018 CAPRI); R. at 186-222 (April 2019 CAPRI). With respect to these records, the veteran does not point to—and the Court is not aware of—any evidence indicating a left shoulder injury.
In light of all this, the Court finds no fault in the Board’s determination that Mr. Thorpe has not submitted new and material evidence in support of his left shoulder claim.
B. Inadequate Exam
Mr. Thorpe further argues that the 2017 exam was inadequate because the examiner did not evaluate his left shoulder. There is no mention of the left shoulder dislocation in the medical opinion, he argues, and the second page of the disability benefits questionnaire (DBQ) does not list the claimed conditions pertinent to the DBQ. Finally, he points out that the medical history section of the DBQ does not describe any trauma to his left shoulder.
When the Secretary undertakes to provide a veteran with a VA examination, he must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical examination or opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations” and “describes the disability . . . in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Sharp, 29 Vet.App. at 31 (quotation marks omitted). A medical opinion based upon an inaccurate factual premise has no probative value. Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012). The adequacy of a medical examination is a finding of fact that the Court reviews under the “clearly erroneous” standard. Sharp, 29 Vet.App. at 31.
Here, contrary to the veteran’s argument, the April 2017 examiner evaluated his left shoulder. Throughout the examination, the examiner noted that the veteran’s left shoulder was normal—that it performed repetitive use testing with no loss of strength and operated with normal flexion and abduction. R. at 859-60, 863. Mr. Thorpe argues that “[t]he second page of the DBQ fails to list the claimed conditions that pertain to the DBQ.” Appellant’s Br. at 10. It is true that the examiner left this section blank. However, there is nothing suspect about this, since the examiner clearly examined his left shoulder and found it to be normal in all relevant respects. R. at 859-60, 863.
The veteran argues that the examiner’s opinion is based on an inaccurate factual premise because “the examiner stated that there was no injury or treatment of [his] left shoulder in service.” However, the examiner made no such statement (and for this reason, the veteran does not cite where in the record such a statement might be found). To the extent Mr. Thorpe argues that “[t]here
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is no mention of the left shoulder dislocation in the medical opinion,” and “the medical history section of the DBQ does not describe the trauma to his left shoulder,” Appellant’s Br. at 10, he does not explain why the report should have described a left shoulder dislocation or trauma to his left shoulder. He does not point to any evidence of a left shoulder injury that he believes the examiner overlooked, and as mentioned repeatedly, none of the medical evidence of record identifies a left shoulder injury but a right one. R. at 1560. Ultimately, the examiner relied on Mr. Thorpe’s own statements in forming his opinion—the medical history section reads: “In 1995 [v]eteran reports that he injured his right shoulder during parachute landing training in Georgia after he landed on it.” The veteran does not contend that this statement is factually erroneous. Simply put, the veteran has not shown that the 2017 exam was based on an inaccurate factual premise or was otherwise inadequate.
The appellant also contends that the opinion is inadequate because the examiner failed to say if the appellant experienced pain or fatigability after repeated use over a period of time. Appellant’s Br. at 10. This argument is a single sentence in length, does not explain the nature of the alleged error or its consequences, and cites no caselaw that might assist the Court in ascertaining and adjudicating the alleged error. Thus, the Court will not consider it. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (explaining that perfunctory and undeveloped arguments are waived).
Finally, Mr. Thorpe contends that the Board provided inadequate reasons and bases for relying on “an inadequate medical examination record.” Appellant’s Br. at 8. Because the 2017 exam is adequate, however, the premise of this contention is meritless.
III. CONCLUSION
Accordingly, the Court AFFIRMS the Board’s September 6, 2019, decision.
DATED: June 29, 2021
Copies to:
Jerusha L. Hancock, Esq.
VA General Counsel (027)

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