Citation Nr: 1801745 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-27 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been submitted to reopen entitlement to service connection for a left shoulder disability, and if so, whether service connection is warranted. 2. Whether new and material evidence has been submitted to reopen entitlement to service connection for a right shoulder disability, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Jon Brown, Agent WITNESS AT HEARING ON APPEAL Veteran and Observer X. G. ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran had active military service from December 1953 and September 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran appeared before the undersigned at a Board videoconference hearing in October 2017. A transcript of that hearing is of record. For clarification purposes, the Board acknowledges that the above appeals were reopened by the RO in January and July 2014 actions. However, as discussed below, the Board has a jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. § 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. These claims are properly stylized as claims to reopen. 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) (2002). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. An unappealed November 2012 Board decision denying service connection for a left rotator cuff tear and denying reopening a claim of entitlement to service connection for a right shoulder disability is final. 2. Evidence added to the record since the November 2012 Board decision raises a reasonable possibility of substantiating the previously denied claims. 3. Resolving all doubt in the Veteran's favor, the evidence shows that the Veteran's diagnosed left rotator cuff degeneration, glenohumeral joint spurring, and supraspinatus tendon tear are etiologically related to his active service. 4. Resolving all doubt in the Veteran's favor, the evidence shows that the Veteran's diagnosed arthritis of the right shoulder is etiology related to his now service-connected left shoulder disability. CONCLUSIONS OF LAW 1. The Board's November 2012 decision denying service connection for a left shoulder rotator cuff tear and the Veteran's claim to reopen entitlement to service connection for a right shoulder disability is final. 38 U.S.C. § 7266 (2002); 38 C.F.R. § 20.1100, 20.1104 (2017). 2. The criteria for reopening the claims for entitlement to service connection for a left shoulder rotator cuff tear and right shoulder disability are met. 38 U.S.C. § 5108 (2002); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for entitlement to service connection for left rotator cuff degeneration, glenohumeral joint spurring, and supraspinatus tendon tear have been met. 38 U.S.C.A. § 1110, 1131, 5107(b) (2002); 38 C.F.R. § 3.102, 3.303 (2017). 4. The criteria for entitlement to service connection for right shoulder arthritis have been met. 38 U.S.C.A. § 1110, 1131, 5107(b) (2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). The above listed claims have been granted herein. Any error related to the duties to notify and assist is moot for these issues. Reopening VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 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. 38 U.S.C. § 5108 (2002); 38 C.F.R. § 3.156 (a) (2017). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In November 2012, the Board denied reopening the Veteran's claim for arthritis of the bilateral shoulders as new and material evidence had not been obtained. The Board also denied service connection for a left shoulder rotator cuff tear. In pertinent part, the Board found no evidence of current diagnosis for the right shoulder or nexus to service for either shoulder. The Veteran did not appeal the Board's November 2012 decision and the decision became final. 38 U.S.C. § 7104 (2002); 38 C.F.R. § 20.1100 (2017). The evidence added to the record since the November 2012 Board decision includes new information pertinent to the Veteran's claim. The additional evidence includes May 2013 and November 2017 private medical opinions supporting diagnosed right shoulder arthritis and service connection for both conditions. This evidence was not previously considered and it raises a reasonable possibility of substantiating the claim. Hence, the evidence is both new and material. The previously denied claims are reopened. Left Shoulder Service connection The Veteran seeks service connection for a left shoulder disability. Specifically, he testified to being injured in a motor vehicle accident (MVA) while in service in May 1955. He reports experiencing symptomatology including pain and limitation of motion since that MVA. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131 (2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Review of the claims file confirms that the Veteran has current diagnoses including: left rotator cuff degeneration, glenohumeral joint spurring, and supraspinatus tendon tear. See March 2013 Disability Benefits Questionnaire. Additionally, service treatment records confirm, and the Board has previously conceded, that in May 1955 he sought treatment for pain of the left upper extremity and chest. See December 2007 and November 2012 Board Decisions. Furthermore, although the claims file lacks the Veteran's hospitalization records, the Board will concede his reported in-service MVA. He has competently and credibly reported being involved in a MVA in-service and such reports have been confirmed by three fellow servicemen. See November 2010 X. G. Correspondence, November 2012 W. F. Correspondence, and December 2012 T. B. Correspondence. Therefore, the first and second elements of Shedden are met. As to the final element of nexus, a private physician Dr. C. B., M. D. opined in two separate opinions that the Veteran's current shoulder disabilities were related to service. See May 2013 and November 2017 Private Medical Opinions. Dr. B. acknowledged the lack of objective evidence of disability/symptomatology on service separation. However, Dr. B. opined that post-service clinical and lay evidence was more persuasive. Dr. B. first clarified that the lack of x-ray evidence of a rotator cuff tear proximate to service did not preclude the Veteran's current left shoulder disability from being related to service. Rather, x-rays are historically known to lack the kind of sensitivity necessary to reveal rotator cuff injuries. Therefore, Dr. B. found it logical that his conditions would not have been readily identifiable on x-ray testing. Dr. B. explained that magnetic resonance imaging (MRI) has heightened sensitivity allowing for accurate detection and analysis of tears but that MRI technology did not exist at the time of the initial injury. Additionally, for years thereafter, MRIs were not readily available to civilian practitioners. Thus, Dr. B. found it reasonable that the Veteran's disabilities were present for decades without accurate detection until his first MRI in 2004. Dr. B. concluded by explaining that the Veteran and his daughter's reports of decades of increasing symptomatology were supported by diagnostic testing results and clinical standards. See December 2012 S. H. Correspondence and Board Hearing Testimony. Namely, initial MRI testing revealed the Veteran's condition had been longstanding as it had progressed from a partial thickness tear to a full thickness unrepairable tear. Additionally, per medical literature, the gradual development of the Veteran's initial MVA injury into his current "frozen shoulder" mirrored the natural progression of such a condition. Dr. B. clarified that rotator cuff tears do not commonly manifest due to age alone; instead there must typically also be underlying trauma. The Board finds this collective evidence sufficient to establish service connection. In sum, service treatment records in conjunction with credible lay statements confirm the Veteran's reports of sustaining an injury after an MVA. The Veteran and daughter have credibly reported that since this injury and service he has suffered from chronic shoulder pain. A private physician has also opined that his shoulder disabilities are a direct result of his in-service injury. Service connection is warranted. The Board acknowledges that there are negative opinions of record; however, this evidence is determined to be no more probative than the aforementioned positive opinion. See November 2010, January 2012, and October 2012 Examinations. Of note, these opinions do not address the assertions of Dr. B. or other submissions made by the Veteran, including the relevant statements of fellow servicemen and his daughter. In light of the record and the governing legal authority, the Board finds that the evidence is, at the very least, in equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit-of-the-doubt rule applies and the requirement of a nexus is thereby met. As such, entitlement to service connection for a left shoulder disability is granted. (CONTINUED ON NEXT PAGE) Right Shoulder Service Connection The Veteran seeks service connection for a right shoulder disability as secondary to his now service-connected left shoulder disability. Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2017). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 7 Vet. App. 439 (1995). The medical evidence reveals that the Veteran has multiple diagnoses for the right shoulder, including: moderate acromioclavicular osteoarthritis, full-thickness tear of supraspinatus tendon, partial thickness tear of the subscapularis and infraspinatus tendons, and degenerative tearing of the labrum. See June 2013 VAMC Minneapolis MRI Results. Further, as discussed above, the Veteran is now service-connected for a left shoulder disability. Therefore the first and second elements of Wallin are met. As to nexus, Dr. B. opined that overuse of the Veteran's right shoulder, as a result of compensating for the deficiencies caused by his left shoulder impairments, caused his current disabilities. This opinion was predicated on careful consideration of the claims file which included lay, diagnostic, examination, and general clinical evidence. The Board finds this opinion highly probative and the record currently lacks any opinion to the contrary. Further, Dr. B. has been established as having intimate knowledge of the Veteran's disabilities after repeat examinations, interviews, and detailed analysis. Therefore, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for right shoulder disability is granted on a secondary basis. See 38 U.S.C. § 5107 (b) (2002); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence sufficient to reopen the previously denied claim for a left shoulder rotator cuff tear has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for a right shoulder disability has been received, the application to reopen is granted. Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a right shoulder disability is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs