Citation Nr: 18140226 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-24 356 DATE: October 2, 2018 ORDER New and material evidence has been received to reopen a service connection claim for residuals of left shoulder injury and the appeal is granted to this extent only. REMANDED Entitlement to service connection for residuals of left shoulder injury is remanded. FINDINGS OF FACT 1. The Veteran’s service connection claim for a left shoulder disability was denied in a September 2005 rating decision. The Veteran did not appeal this decision; nor has he asserted clear and unmistakable error in this decision. 2. The evidence received since the September 2005 decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for a left shoulder disability. CONCLUSIONS OF LAW 1. The September 2005 rating decision denying service connection for a left shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(c), 20.1103. 2. Since the September 2005 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a left shoulder disability; and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 2003 to March 2005. 1. Whether new and material evidence has been received to reopen a service connection claim for residuals of left shoulder injury Prior to addressing the merits of the Veteran’s service connection claim for a left shoulder disability, the issue of whether new and material evidence has been received to reopen the claim must be addressed, as the service connection claim have been previously denied in September 2005. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. 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 sustaining the claim. 38 C.F.R. § 3.156(a) (2017). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran originally filed a service connection claim for a left shoulder disability in June 2005. The service treatment records showed on the entrance examination that the Veteran had had a previous shoulder injury with surgery to repair a labral tear in October 2002. Private treatment records show that the Veteran was reportedly in a motor vehicle accident in November 2000 and described a left shoulder injury in which his shoulder was wrenched in a forced twisting motion. X-rays and MRI report in September 2002 were normal. In October 2002, the Veteran had left shoulder instability and labral tear and underwent a Bankart repair. His post-operative diagnosis was left shoulder multidirectional instability, Bankart tear, and synovitis. At entry into service in June 2003, the Veteran’s left shoulder was reportedly completely asymptomatic and he was cleared for entry into the military with no physical limitations. Just prior to his separation from service in March 2005, however, the Veteran had a lifting injury to the left shoulder. He was reportedly lifting a heavy bag and felt his shoulder pop. X-rays were negative for fracture. The assessment was left shoulder sprain pain. A general VA examination was provided in August 2005 documenting the Veteran’s shoulder medical history but no etiology opinion was provided. The Veteran noted on examination that he did not have recurrent dislocation of the left shoulder since his surgery until the lifting injury in service. A September 2005 x-ray examination showed minimal narrowing of the left AC joint. In a September 2005 rating decision, the RO determined that there was no evidence that the Veteran’s left shoulder condition permanently worsened as a result of service. It was noted that review of the service treatment records showed the Veteran was involved in a motor vehicle accident prior to service in November 2000 in which he injured his left shoulder. He underwent surgery in October 2002. During military service he had only one complaint of left shoulder sprain in March 2005. Findings showed limited motion in all planes with apprehension, but no pain, full strength, and no other symptoms. The Veteran filed a notice of disagreement with the September 2005 rating decision; but after he was issued a statement of the case, did not file a timely appeal. Because the September 2005 rating decision was not appealed, it is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence received since the last September 2005 rating decision includes the Veteran’s assertion in July 2007 noting that his shoulder injury in service was new. The Veteran’s mother also submitted a statement in August 2015 that the Veteran’s commanding officers would disregard the Veteran’s medical orders to do desk work and instead making him do exertive work such as carrying extremely heavy bags of wet grass. The Veteran submitted a statement in August 2015 that he had sharp pain that was throbbing and shooting down his arm from his left shoulder. He noted that since his military discharge, his left shoulder had gotten worse. The Board finds that this evidence is both new and material. Specifically, the newly received evidence shows that the Veteran and his mother provided competent statements that he was forced to do heavy work in service outside of the doctor’s orders and that the injury in service was not an aggravation of a preexisting injury, but a new injury to the left shoulder. He further noted that his left shoulder disability continued to worsen after service. This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran’s claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. Accordingly, the Veteran’s service connection claim for a left shoulder disability is considered reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for residuals of left shoulder injury is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a left shoulder disability. An August 2013 VA examiner found that the Veteran’s left shoulder disability was less likely than not aggravated beyond its natural progrresion by miltiary service on the basis that the Veteran had a significant shoulder injury prior to service resulting in major surgery, had one entry of a lifting strain in service, and x-ray findings in September 2005 showed similar findings as noted prior to service. Private treatment records dated in November 2005 show, however, that the Veteran reported that he had been doing great from his previous surgery without any residual effects or limitations with regard to the shoulder prior to the injury in service. Additionally, even though the Veteran had had a previous shoulder injury with surgery to repair a labral tear in October 2002, x-rays and MRI report in September 2002 were normal. In October 2002, the Veteran had left shoulder instability and labral tear and underwent a Bankart repair. His post-operative diagnosis was left shoulder multidirectional instability, Bankart tear, and synovitis. At entry into service in June 2003, the Veteran’s left shoulder was reportedly completely asymptomatic and he was cleared for entry into the military with no physical limitations. A general VA examination was provided in August 2005 in which the Veteran noted that he did not have recurrent dislocation of the left shoulder since his surgery until the lifting injury in service. A September 2005 x-ray examination showed minimal narrowing of the left AC joint. This evidence should be considered in any opinion addressing the likelihood that the Veteran’s preexisting left shoulder disability was aggravated beyond the normal progression in service. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shoulder disability. The examiner must opine whether it is at least as likely as not that the Veteran’s preexisting left shoulder disability increased in severity in service and, if so, whether any increase in severity in service was clearly and unmistakably (undebatable) due to the natural progress of the disorder. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond