Citation Nr: 1800302 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-24 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim to entitlement to service connection for left shoulder arthrosis, to include as secondary to left knee degenerative joint disease, status-post meniscectomy (left knee disability). 2. Entitlement to service connection for left shoulder arthrosis, to include as secondary to left knee disability. 3. Entitlement to service connection for avascular necrosis of the right hip with impaction fracture requiring hip joint replacement (claimed as broken right hip), to include as secondary to left knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran had active service from June 1981 to June 1987 This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2014 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Service connection for a left shoulder arthrosis was denied in a February 2012 rating decision in part on the basis that the condition was not related to the service-connected left knee condition. 2. The Veteran filed a notice of disagreement with the February 2012 rating decision in April 2012, and the RO issued a statement of the case (SOC) in May 2012. The Veteran did not file a Substantive Appeal, VA Form 9, and that decision became final. 3. Evidence received since the February 2012 rating decision denying service connection for left should arthrosis relates to an unestablished fact necessary to substantiate the claim. 4. The Veteran's left shoulder arthrosis has been linked to a fall after service, and the evidence is at least in equipoise as to whether his service connected left knee disability caused this fall. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran's claim for service connection for left shoulder arthrosis is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for service connection for left shoulder arthrosis have been met. 38 U.S.C.A. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Service connection for left shoulder arthrosis was initially denied in a February 2012 rating decision. Although there was a current diagnosis, a VA examiner found that it was less likely than not that his left knee condition caused the fall that injured his shoulder. In other words, the examiner essentially found that the Veteran's left shoulder disability was caused by the fall, but that the fall itself was not caused by his service-connected left knee disability. In the absence of a positive nexus opinion, the RO concluded that service connection was not warranted. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the February 2012 decision includes a September 2013 VA examination for his wrists, during which the examiner found that the Veteran's left knee would sometimes "g[ive]-way insidiously." The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of a relationship between the Veteran's service-connected left knee disability and falling; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In addition, service connection is also warranted where the evidence of record establishes that a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3. 310(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Left Shoulder Arthrosis The Veteran received a VA examination for his shoulder in January 2012, and the examiner diagnosed him with mild to moderate arthrosis of the left shoulder. The Veteran claimed that, while walking to the bathroom, he fell due to his service-connected left knee condition. Based on the Veteran's statements and an in-person examination, the examiner found that the claimed condition was less likely than not proximately due to or the result of his service-connected condition. The examiner found that the Veteran had multiple surgeries on his left knee, and his last surgery required an anterior tubercle osteotomy. He noted that the Veteran had a normal gait and was not wearing a left knee support or stabilizer brace; the examiner indicated he would be more inclined to attribute the left shoulder injury fall to the Veteran's left knee if he was wearing a knee support or brace or if he currently showed left knee instability with gait. Nevertheless, the examiner essentially found that the fall is what indeed caused the left shoulder disability, but that the fall was not caused by his service-connected left knee disability. The Veteran received a VA examination for a right wrist disability in September 2013, and claimed that he injured his right wrist after a fall. The examiner found that the injury was at least as likely as not proximately due to or the result of the Veteran's service-connected left knee disability. He reasoned that, after reviewing the Veteran's record, it appeared that he had enough pain and instability that at certain times the left knee would buckle and give way. In the absence of pain, the likely etiology would be ligamentous instability; if there was pain along with the instability, however, the likely etiology would be pain flowed by ligamentous. The examiner noted that the Veteran had multiple surgeries on his left knee, and the last procedure was an open surgery. The examiner found that although the surgery made a big difference in the Veteran's sense of knee stability, there were still episodes of it giving way insidiously. Initially, the Board observes that the record does not show, and the Veteran does not claim, that his left shoulder arthrosis had its onset in service or within one year thereafter, or is causally related to active service. The record shows that the arthrosis was diagnosed in 2012. The Board notes the Veteran has a current diagnosis of left shoulder arthrosis, and finds his reports of falling and injuring his left shoulder highly credible. Moreover, there appears to be no question as to the cause of his left shoulder disability-it was the documented, post-service fall. The Board finds that both the January 2012 and September 2013 VA examinations are highly probative as to whether the Veteran's left knee caused his fall. Both examiners provided well-reasoned and detailed opinions, consistent with other evidence of record. Both examiners had access to the accurate medical background of the Veteran. The examiners considered the Veteran's multiple surgeries when reaching their conclusions on whether the service-connected left knee condition caused the Veteran's fall. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's fall was due to his service-connected left knee condition. The January 2012 examiner found that the Veteran's left shoulder arthrosis was the result of a fall, but the fall was not the result of his service-connected left knee condition. The September 2013 examiner found that the Veteran's fall was, in fact, caused by his left knee instability. As the evidence is at least in relative equipoise with respect to whether the left knee condition caused the fall, the Veteran prevails and service connection is warranted. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for left shoulder arthrosis. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for left shoulder arthrosis is reopened. Service connection for left shoulder arthrosis is granted. REMAND The Board finds that additional development is necessary regarding the Veteran's service connection claim for avascular necrosis of the right hip. The Veteran exclusively contends that his right hip disability is secondary to his service-connected left knee disability. The most probative evidence of record does not show that his right hip disability is directly related to service, nor does the Veteran so contend. The Board finds that the August 2015 VA opinion does not include a complete opinion related to secondary service connection. Namely, the examiner does not address whether the Veteran's service-connected left knee disability may have aggravated his right hip disability. As such, a clarification opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate examiner to provide a supplemental opinion regarding the Veteran's service connection claim for avascular necrosis of the right hip. It is left to the examiner's discretion whether to reexamine the Veteran. Following review of the claims file, the examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected left knee disability caused or aggravated his right hip disability? The examiner should provide an opinion as to the questions of BOTH causation AND aggravation. The examiner is asked to provide a complete rationale for any opinions given. 2. After completing the above actions, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs