Citation Nr: 18140020 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-34 508 DATE: October 2, 2018 ORDER The petition to reopen a claim for service connection for a left knee condition is denied. Entitlement to an effective date prior to October 14, 2014 for the grant of service connection for right shoulder degenerative joint disease, with tear of superior labrum, and tendinosis of the rotator cuff and long head of the biceps tendon, status post arthrotomy (hereinafter “right shoulder disability”) is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected right shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for a left knee condition was previously denied by an August 2013 rating decision because there was no evidence that the disability was incurred in or caused by service. This decision became final in August 2014, as the Veteran did not perfect an appeal. 2. The evidence received subsequent to the August 2013 rating decision does not relate to a previously unestablished fact and does not present a reasonable possibility of substantiating the claim of service connection for a left knee condition. 3. The Veteran’s claim of entitlement to service connection for a right shoulder disability was previously denied by an August 2013 rating decision. The Veteran did not perfect a substantive appeal for that decision, nor did he raise a claim of clear and unmistakable error in this rating decision, and therefore, this rating decision is final. 4. The Veteran filed a petition to reopen a claim for service connection for a right shoulder disability on October 14, 2014. In July 2015, the RO granted service connection and assigned an effective date of October 14, 2014, the date of filing to reopen. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen the claim of service connection for a left knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for an effective date earlier than October 14, 2014 for the grant of service connection for a right shoulder disability, have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.104, 3.160, 3.400, 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1972 to October 1973. The Veteran initially requested a video conference hearing before the Board, but he withdrew this hearing request in October 2015. New and Material Evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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). The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the Veteran’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. Left Knee Condition The RO originally denied service connection for a left knee condition in February 1993. The Veteran did not perfect an appeal, and therefore the rating decision became final. See 38 C.F.R. § 3.156 (b). Most recently, the RO declined to reopen the claim in an August 2013 rating decision because there was no evidence that the Veteran’s left knee condition was related to service. This decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. The evidence added to the record since the last prior denial includes additional VA treatment records, lay statements submitted by the Veteran, and treatment records that are cumulative and redundant of the evidence of record at the time of the prior final denial. Additionally, none of the evidence of record shows that the Veteran’s left knee condition manifested in service. In view of the foregoing, the Board finds that while the evidence added to the record is “new” to the extent it was not previously on file, it does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. Thus, new and material evidence has not been received to reopen the previously denied claim in accord with 38 C.F.R. 3.156 (a). Accordingly, the benefit sought on appeal must be denied. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). Earlier Effective Date Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2)(i). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. For an award based on receipt of new and material evidence, other than service treatment records (STRs), received within the appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400 (q)(1). The proper effective date for an award based on receipt of new and material evidence, other than STRs, received after a final disallowance is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (i); 38 C.F.R. §§ 3.400 (q)(2), 3.400(r). Right Shoulder The Veteran contends that the effective date for service connection for his right shoulder disability should be earlier than October 14, 2014. Specifically, the Veteran asserts that, because his disability was incurred in service, the effective date for the right shoulder disability should be based on his separation from service. Turning to the record of evidence, in October 1973, the Veteran filed a claim for service connection for a right shoulder disability. Service connection was denied by a May 1974 rating decision. While the Veteran filed a timely notice of disagreement, he did not perfect his appeal following the July 1975 statement of the case. Therefore, the rating decision became final. In March 1984, the Veteran submitted a claim to reopen, which was denied in March 1984. The Veteran filed an appeal, and the Board found in a September 1985 decision that service connection was not warranted. The Veteran did not appeal this decision, and it became final. The Veteran has subsequently filed various petitions to reopen the claim for service connection, and these petitions were denied by decisions dated February 1993, October 1997, August 1999, January 2000, November 2001, and August 2013. The Veteran did not submit new and material evidence or perfect appeals of these decisions. Most recently, the Veteran submitted a petition to reopen his claim on October 14, 2014. In a July 2015 rating decision, the RO granted service connection for a right shoulder disability, effective October 14, 2014, the date of the Veteran’s most recent request to reopen the claim. After review of the record, the Board finds the effective date of October 14, 2014 to be appropriate. Regarding the August 2013 rating decision, the Veteran did not perfect a substantive appeal, nor did he raise a claim of clear and unmistakable error in this rating decision. Therefore, the August 2013 decision is final. During a June 2015 VA examination, the examiner found that the Veteran’s current right shoulder condition is at least as likely as not related to injury and/or surgery during active duty. The RO granted the Veteran’s claim based on the findings of this examination. Additionally, the RO assigned the earliest effective date possible based on the filing to reopen the case after a final disallowance, subsequent to the laws governing the assignment of effective dates as stated in 38 C.F.R. § 3.400. Therefore, the effective date of October 14, 2014 is appropriate. For these reasons, an effective date earlier than October 14, 2014 for service connection for the Veteran’s right shoulder disability is not warranted. REASONS FOR REMAND 1. Right Shoulder The Veteran contends that his service-connected right shoulder disability warrants a higher rating than initially assigned. A 20 percent rating is effective from October 14, 2014. The Veteran was afforded a VA examination for his right shoulder disability in June 2015 and the examination was adequate for rating purposes at that time. However, this examination is unduly remote, as it is over three years old. The Board is unable to determine the current severity of the Veteran’s service-connected right shoulder disability, and concludes that a remand is needed to afford the Veteran an opportunity to undergo an updated VA examination to assess the current nature, extent, and severity of this disability and to obtain any outstanding VA treatment records. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (noting that an examination too remote for rating purposes cannot be considered “contemporaneous”); see also 38 C.F.R. § 3.159(c)(2) (2017); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the record contains VA treatment records through October 2015. On remand, updated VA treatment records should be obtained and the Veteran should also be offered the opportunity to submit any private treatment records in support of his claims. 2. TDIU Finally, because a decision on the remanded issue of entitlement to an increased rating for a right shoulder disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran’s claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claims. 2. Invite the Veteran to submit any evidence showing that his service-connected disabilities render him unemployable. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of his right shoulder disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right shoulder disability alone and discuss the effect of the right shoulder disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel