Citation Nr: 1802795 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-11 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a heart disability, to include as secondary to service-connected sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1995. He died in March 2012. The appellant is the Veteran's surviving spouse, who has been substituted for the deceased Veteran for the claims on appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2017, the appellant testified before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. 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). The issues of entitlement to service connection for left shoulder and heart disabilities are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. An unappealed October 1995 rating decision denied service connection for a left shoulder disability. 2. Evidence received since the October 1995 rating decision is neither cumulative nor redundant and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1995 rating decision that denied service connection for a left shoulder disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a left shoulder disability has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision-makers. 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 C.F.R. § 3.156(a) (2017). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1137 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection for a current disability, a Veteran must show the existence of a current disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Prior to his death, the Veteran claimed that he developed a left shoulder disability due to in-service injuries noted in his service medical records and trauma related to the carrying of a heavy bag during service. An October 1995 RO rating decision denied service connection for a left shoulder disability because of the lack of evidence a current shoulder disability at that time. Thus, evidence in this case can be considered new and material if it suggests that the Veteran had a current shoulder disability related to service during the pendency of his appeal. Reviewing the evidence submitted since the October 1995 rating decision, in a March 2010 private left shoulder X-ray report, a private examiner diagnosed moderate degenerative changes in the acromioclavicular joint. That evidence is new, as it was not previously of record at the time of the October 1995 rating decision. It is also material because, when taken with the Veteran's statements regarding in-service incurrence of a shoulder disability, it indicates that the Veteran had a left shoulder disability that might have been caused by in-service trauma. New and material evidence having been received, the claim for service connection for a left shoulder disability is reopened. To that extent only, the appeal is allowed. ORDER The claim of entitlement to service connection for a left shoulder disability is reopened and, to that extent only, the appeal is granted. REMAND The Veteran's death certificate indicates that he passed away due to dilated cardiomyopathy while being treated in the emergency room at Good Samaritan Hospital in Puyallup, Washington. As any records regarding treatment for the heart disability may be relevant to this matter, a remand is necessary to obtain any outstanding treatment records, to include any regarding the Veteran's final treatment at Good Samaritan Hospital. A remand is necessary to obtain medical opinions regarding the etiologies of the disabilities on appeal. Accordingly, this appeal is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested. 1. After obtaining any necessary releases, obtain and associate with the claims file all outstanding records of VA and private treatment for any heart and left shoulder disabilities, to include any emergency room records from Good Samaritan Hospital in Puyallup, Washington, up to March 2012. Associate all records or responses received with the record. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 2. Then, provide the Veteran's claims file to a VA cardiologist for an opinion regarding the etiology of any heart disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the in-service reports of chest pain; the in-service diagnosis of sinus tachycardia; the records regarding post-service treatment for a heart murmur; any records regarding treatment for the Veteran's fatal dilated cardiomyopathy; and the lay evidence provided by the Veteran and the appellant regarding the continuity of chest pains experienced by the Veteran both during and after service. The examiner should also note the internet material submitted by the Veteran, indicating relationships between sleep apnea, hypertension, and heart disease. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any heart disability noted during the pendency of the appeal, dating since March 2009, was incurred in or caused by service, to include as related to in-service reports of chest pain and the in-service diagnosis of sinus tachycardia; or manifested itself within one year of the June 1995 separation from service? (b) Is it at least as likely as not (50 percent or greater probability) that any heart disability noted during the pendency of the appeal, dating since March 2009, was caused by service-connected sleep apnea or any other service-connected disability? (c) Is it at least as likely as not (50 percent or greater probability) that any heart disability noted during the pendency of the appeal, dating since March 2009, was aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected sleep apnea or any other service-connected disability? 3. After obtaining the required records, provide the Veteran's claims file to a VA orthopedist for an opinion regarding the etiology of any left shoulder disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the Veteran's in-service reports of treatment for left shoulder trauma; the post-service treatment for moderate degenerative changes in the acromioclavicular joint; and the lay statements regarding a relationship between a left shoulder disability and in-service trauma, to include that caused by carrying a heavy bag during service. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that any left shoulder disability noted during the pendency of the appeal, dating since March 2009, was incurred in or caused by service; or whether arthritis of the left shoulder manifested within one year of the June 1995 separation from service. 4. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs