Citation Nr: 1600037 Decision Date: 01/04/16 Archive Date: 01/12/16 DOCKET NO. 11-02 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right shoulder disability, to include bursitis, arthrosis, impingement syndrome and degenerative changes, and, if so, whether the reopened claim should be granted. 2. Entitlement to service connection for a left shoulder disability, to include arthrosis and a partial rotator cuff tear. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1983 to January 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2014. A transcript of the hearing is associated with the electronic claims file. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issues of entitlement to service connection for left and right shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A November 2008 Board decision denied service connection for a right shoulder disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one year appellate period. 2. The evidence associated with the claims file subsequent to the November 2008 rating decision is not cumulative and redundant of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The November 2008 Board decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1105 (2015). 2. New and material evidence sufficient to reopen the claim of service connection for a right shoulder disability has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a), (c) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, in light of the fully favorable decision as to the issues of reopening herein, no further discussion of compliance with VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). The two service connection claims required further development, and are addressed in the remand section below. II. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. First, the Board finds that the Veteran is required to submit new and material evidence to reopen his claims for service connection. Since the November 2008 Board decision, the Veteran's personnel records have been associated with the claims file. While these records were not associated with the claims file the time or the prior denial, they are not relevant to the claim at issue as they do not in any way address an in-service right shoulder injury. As the personnel records do not relate to the injury for which the Veteran is seeking benefits, the Board finds that they are not relevant, and therefore new and material evidence is required to reopen the claim of service connection for a right shoulder disability. Golz, 590 F.3d 1317. Second, new and material evidence sufficient to reopen the claim of service connection for a right shoulder disability has been submitted. Here, the Board denied service connection for a right shoulder disability in November 2008. The Veteran was notified of the decision, but did not appeal to the Court of Appeals for Veterans Claims (Court). Therefore, the November 2008 decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100. The evidence of record in November 2008 consisted of the Veteran's service treatment records, private and VA medical treatment records, and the Veteran's lay statements indicating that he hurt his shoulder during basic training. The evidence did not establish an in-service injury that was chronic in nature, nor did it show a nexus between the current right shoulder disability and service. Evidence received since the rating decision includes further VA and private treatment records, additional lay statements from the Veteran, and the Veteran's September 2015 testimony before the undersigned. Of particular importance, during his hearing the Veteran stated that his shoulder condition was also due to continuous use, or overuse, during service, in addition to reiterating his statements concerning the injury sustained during basic training. The Veteran is competent to report persistent pain in his shoulder in service, and is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of an in-service event, injury or disease. It is not redundant and raises a reasonable possibility of substantiating the claim. As the new testimony, when viewed in conjunction with old evidence, would at least entitle to Veteran to further assistance and in light of the low threshold for the reopening of claims, the Board finds that reopening of the claim for service connection for a right shoulder disability is warranted. Shade, 24 Vet. App. 110. ORDER New and material evidence having been received, the claim for service connection for a right shoulder disability is reopened; the claim is granted to this extent only. REMAND The duty to assist includes providing a medical examination when such is necessary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, private treatment records reflect various left and right shoulder diagnoses, including arthrosis, a rotator cuff tear, impingement syndrome and bursitis. The Veteran has stated that he injured both shoulders during basic training, the same time he injured his now service-connected right elbow. While service treatment records are silent for any complaints of a shoulder injury, treatment records do reflect a complaint of a right elbow injury in March 1983, which is within the 13 week period following enlistment during which the Veteran states he was in basic training. Further, the Veteran has alleged that his bilateral shoulder disabilities are due to overuse during service, including carrying objects, pushups and other tasks, all of which is consistent with his service. Thus, there is some evidence of an in-service event, injury or disease. The Veteran has asserted that he has experienced bilateral shoulder pain since service, and there is otherwise insufficient medical evidence to decide the claim. As such, the Board finds that it must remand the claim for a VA examination to determine the nature and etiology of the claimed left and right shoulder disabilities. While on remand, appropriate efforts must be made to obtain any further records identified and authorized for release by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's left and right shoulder disabilities. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left shoulder disability, to include arthrosis and a partial rotator cuff tear, is related to his active duty service? b) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's right shoulder disability, to include bursitis, arthrosis, and impingement syndrome, is related to his active duty service? A detailed rationale for the opinion must be provided. The examiner should consider the Veteran's lay statements indicating that he injured his shoulders when he fell during a rappelling drill during basic training. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination) is inadequate. Dalton v. Peake, 21 Vet. App. 23 (2007). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs