Citation Nr: 1805910 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-26 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for malformed left shoulder (claimed as a left shoulder disability). 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and M.H. ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The appellant served in the North Carolina National Guard from March 1992 to March 1998. He had a period of active duty for training (ACDUTRA) from March 1992 to November 1993. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appellant testified at a videoconference hearing in October 2017 before the undersigned. A copy of the transcript has been associated with the claims file. The issue of entitlement to service connection for a left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a malformed left shoulder was denied by an unappealed August 2001 rating decision. 2. Since the August 2001 rating decision, the appellant has submitted new evidence that relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2001 rating decision that denied service connection for malformed left shoulder is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.104 (a), 20.302, 20.1103 (2017). 2. The evidence received since the August 2001 rating decision is new and material, and the claim for service connection for malformed left shoulder is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decision makers, and "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 of record at the time of the last 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Malformed Left Shoulder Service connection for a malformed left shoulder was denied by an August 2001 rating decision. The rating decision noted that the appellant contended that he sustained a left shoulder disability on June 7, 1992, while serving during a period of ACDUTRA. The rating decision stated that the appellant's enlistment examination revealed an assessment of a malformed shoulder and that a September 1993 statement from D.M., M.D. reported that the claimant began experiencing symptoms in 1993 due to military push-ups and weight lifting. The rating decision stated that the claim had been denied on the basis that there was no evidence that the condition was permanently worsened as a result of the appellant's service. The rating decision also stated that there was no evidence submitted that reflected that the appellant sustained an injury to the left shoulder, nor that such injury was incurred during a qualifying period of service. The rating decision became final one year after notice was provided to the appellant. Since the August 2001 rating decision, additional evidence has been associated with the claims file. In October 2009, the appellant requested that the claim for service connection a left shoulder disability be reopened. In April 2010, the appellant stated that he injured his left shoulder in basic training. During his October 2017 Board hearing, the appellant reported that during basic training he fell from "Victory Tower" during a rappelling drill and landed on his left shoulder. He stated that he did not initially believe that the injury was serious and completed the drill, but went on profile several days later due to constant pain in his shoulder. During the hearing, the appellant stated that he has suffered from pain in his shoulder since his fall in basic training and that his current physician, B.W., believes that his current left shoulder disability started in the military. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it provides evidence indicating that the appellant suffered an injury to his left shoulder during basic training and indicates a link between the appellant's in-service injury and his current left shoulder disability. When viewed with the previous evidence of record, these statements are neither cumulative nor redundant, and raise a reasonable possibility of substantiating the appellant's claim. As such, new and material evidence has been received, and reopening the claim is warranted. ORDER The application to reopen the claim of entitlement to service connection for malformed left shoulder is granted. REMAND Upon review of the record, the Board finds that the appellant's claim for service connection must be remanded for further development. During his Board hearing, the appellant stated that has had pain in his left shoulder since his in-service injury and that his current physician, B.W, believes that his current left shoulder disability is due to his military service. The claims file does not indicate that attempts have been made to obtain records from the appellant's current physician. Accordingly, the Board finds that reasonable attempts should be made to obtain any relevant records. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "veteran" status, the claimant must demonstrate both elements of aggravation - (1) that the preexisting disability permanent worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Donnellan, 24 Vet. App. at 175. The claims file does not indicate that a medical opinion has been obtained regarding whether the appellant has a left shoulder condition that was either caused or aggravated by service. The evidence of record establishes that the appellant sought treatment from D.M., M.D. in 1993, during his period of ACDUTRA. At that time, the physician stated the following: "I initially saw [the appellant] in March 1993 when he developed pain in this shoulder doing military pushups and weight lifting. [The appellant] had a history of dislocation of the shoulder at a very young age and had no problems with that until this recent episode of symptoms that began in early 1993. His exam and x-rays were consistent with mild distal clavicle osteolysis with good maintenance of joint space at the AC joint." While this opinion indicates the appellant may have caused or aggravated a left shoulder disability while performing push-ups and lifting weights, it is unclear that the appellant's current left shoulder condition was caused or aggravated by his period of service. Accordingly, the Board finds that a medical opinion should be obtained regarding the etiology of any current left shoulder disability. Accordingly, the case is REMANDED for the following action: 1. First, undertake appropriate efforts to obtain any private treatment records identified by the appellant, or his representative, including records related to the appellant's treatment with B.W., M.D. or treatment from Cornerstone Health Care. The appellant, and his representative, should be asked to provide any needed assistance in identifying and obtaining these records. 2. The appellant must be afforded a VA examination to determine the etiology of his any current left shoulder disability. The claims file and all electronic records must be made available to the examiner. The examiner must report review of the claims file. The examiner is specifically asked to provide the following opinions: Whether it is at least as likely as not (a 50 percent probability) that the appellant's current left shoulder disability is due to or the result of, any incident of his military service, including his fall during boot camp in June 1992 or performing military pushups and weight lifting. If it is determined that the appellant's current left shoulder disability pre-existed his period of service, please opine as to the following: Whether it is at least as likely as not (a 50 percent probability) that the appellant's current left shoulder disability was permanently worsened in service; and whether it is at least as likely as not that such worsening was beyond the natural progression of the disease. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the appellant's lay assertions. The appellant's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. After completing the above, and any other development deemed necessary, readjudicate the appellant's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs