Citation Nr: 1802058 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-14 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1964 to March 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). Although this appeal also originally included two additional claims to reopen service connection for left and right knee disabilities, an intervening March 2014 rating decision granted those claims in full. Therefore, they are no longer before the Board. Similarly, the current appeal previously included service connection for posttraumatic stress disorder (PTSD), but the Veteran limited it to those matters listed above in his substantive appeal (as clarified by a March 2016 statement). The reopened claim for service connection for a right shoulder disability and the claim for service connection for a left shoulder disability are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed June 2002 rating decision denied the Veteran service connection for a right shoulder disability. 2. Evidence received since the June 2002 denial includes evidence not of record at that time but relates to previously unestablished facts necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for right shoulder disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION An unappealed June 2002 rating decision denied the Veteran service connection for a right shoulder disability because a chronic right shoulder disability was not shown to be related to the Veteran's military service; thus, that decision became final based on the evidence then of record. Evidence received since the June 2002 denial includes evidence not of record at that time; shows the Veteran has several additional right shoulder disabilities that were previously not documented in the record and, therefore, not considered at the time of the prior final denial; suggests that such disabilities are related to injuries incurred during parachute jumps in service (which is consistent with his service records reflecting receipt of a Parachutist Badge) but were unreported at the time for fear of losing hazard pay; relates to previously unestablished facts necessary to substantiate the underlying claim of service connection (i.e., in-service event or injury); and raises a reasonable possibility of substantiating that claim. Based on the above, the claim is reopened under 38 C.F.R. § 3.156(a). No further discussion of VA's duties to notify and assist the Veteran in conjunction with his claim is necessary here, as further action to fulfill those duties is addressed in the REMAND section below. ORDER New and material evidence has been received to reopen the claim for service connection for a right shoulder disability; to this extent only, the appeal is granted. REMAND The Veteran was afforded an April 2016 VA examination in conjunction with his claims seeking service connection for right and left shoulder disabilities. A review of this examination report reveals that, despite what appears to be a rather extensive review and opinion, there are unfortunately still oversights and inconsistencies that leave critical medical questions unresolved. First, the Board notes that the only current diagnoses made in April 2016 were left shoulder impingement syndrome and bilateral acromioclavicular joint osteoarthritis. In so finding, the examiner specifically notes the results of a May 1998 VA examination that noted diagnoses of chronic bilateral trapezius strain, chronic bilateral synovitis with probably degenerative arthritis, and chronic bilateral rotator cuff impingement and tendinitis, but found that such diagnoses were inadequate because contemporaneous X-rays were normal and "no other confirmatory testing was performed to support" them. The examiner then notes that the Veteran had no other shoulder problems until late 2011, when he was diagnosed with mild to moderate left shoulder glenohumeral joint degenerative arthritis and a subsequent 2012 MRI showing left shoulder impingement syndrome with acromioclavicular arthritis. However, a review of VA and private records shows that the Veteran received several other diagnoses that were not addressed or reconciled with the April 2016 findings (or lack thereof), including-but not limited to-right shoulder bursitis on September 1983 private evaluation, right shoulder impingement syndrome with acromioclavicular joint arthrosis and separation deformity on August 1998 private evaluation, right shoulder impingement syndrome on October 1998 private evaluation, right shoulder chronic muscular strain, chronic rotator cuff impingement, and tendinitis of the glenohumeral joint with possible rotator cuff tear on July 2000 VA evaluation, bilateral rotator cuff tears on March 2006 VA evaluation, and a differential diagnosis of rotator cuff tear on June 2012 VA evaluation. Thus, the currently applicable shoulder diagnoses remain unclear, and clarification is needed. Furthermore, the Board notes that the April 2016 negative nexus opinion seems to consider the absence of evidence documenting the alleged parachuting injuries in service as evidence of their absence. That said, the Veteran has consistently reported that he did not seek treatment for such injuries because he did not want to give up hazard pay at the time. He is competent to report observable events and symptoms such as an overt shoulder injury or, at least, the pain attendant to such injury. Further consideration is thus due to these reports. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated records of VA or adequately identified private evaluations or treatment the Veteran has received for his right and left shoulder disabilities. 2. Then, arrange for Veteran to have a VA orthopedic examination, with an appropriate examiner who has reviewed the claims file. The examiner is requested to address all shoulder diagnoses reflected in the private, VA and other medical evidence of record and to reconcile all current diagnostic findings (or lack thereof) with any conflicting evidence in the record. If any prior diagnosis is not found to be warranted, this must be explained in detail. For each right and left shoulder disorder, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability is related to service. The examiner is requested to consider the significance of the Veteran's reports of shoulder injuries he sustained during parachute jumps, but did not seek treatment for at the time. All opinions must be supported by a detailed rationale. 3. The AOJ should then review the record and readjudicate the claims for service connection for right and left shoulder disorders. If either claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs