Citation Nr: 18140548 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-12 442 DATE: October 3, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for a right shoulder disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of Guillain-Barre syndrome affecting the left upper extremity is remanded. Entitlement to a rating in excess of 10 percent for residuals of Guillain-Barre syndrome affecting the right upper extremity is remanded. Entitlement to a rating in excess of 10 percent for residuals of Guillain-Barre syndrome affecting the left lower extremity is remanded. Entitlement to a rating in excess of 10 percent for residuals of Guillain-Barre syndrome affecting the right lower extremity is remanded. FINDINGS OF FACT 1. In an unappealed January 2012 rating decision, the Regional Office (RO) with prior jurisdiction over the Veteran’s claim denied service connection for a right shoulder disability because the evidence failed to demonstrate that the Veteran suffered from a right shoulder disability that was related to his service. 2. Evidence received since the January 2012 rating decision is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The January 2012 rating decision that denied service connection for a right shoulder disability became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received after the January 2012 rating decision is not new and material to reopen a claim of entitlement to service connection for a right shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to May 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal of January 2012 and August 2013 rating decisions. The application to reopen the previously denied claim of entitlement to service connection for a right shoulder disability is denied. The Board is required to determine whether new and material evidence has been received before it can reopen a claim. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, VA shall reopen and review an adjudicated claim when a veteran submits new and material evidence that raises a reasonable possibility of substantiating the adjudicated claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the veteran’s claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran filed a claim of entitlement to service connection for a right shoulder disability in November 2010. As part of a January 2011 letter, the Veteran stated that he suffered from a right shoulder condition due to Guillain-Barre syndrome, and that his right shoulder condition made it difficult for him to “play sports and lift different objects for a long period of time.” He also indicated that he later suffered from constant pain, and that he was diagnosed with tendonitis affecting his right shoulder in 2005. In a February 2011 statement, the Veteran wrote that his right shoulder disability was the result of lifting heavy equipment during his service. Service connection for a right shoulder disability was denied in a January 2012 rating decision because the evidence of record failed to demonstrate that the Veteran suffered from a right shoulder disability as a result of his service. The Veteran did not file a notice of disagreement with this rating decision, and the January 2012 rating decision became final. In November 2012, the Veteran filed a new claim of entitlement to service connection for a right shoulder disability, as secondary to his service-connected Guillain-Barre syndrome. The Veteran did not disagree with the January 2012 rating decision as part of his November 2012 claim. In an April 2013 statement, the Veteran wrote “Right Shoulder – Due to prior [Guillain-Barre syndrome] . . . shoulder became injured and strained prior to last claim was misunderstood about shoulder damage.” In August 2013, the RO denied the Veteran’s new right shoulder disability claim. The August 2013 denial is now before the Board for adjudication. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; Young v. Shinseki, 22 Vet. App. 461, 468 (2011). The Veteran now seeks to reopen his claim of entitlement to service connection for a right shoulder disability based on the submission of new and material evidence. New evidence received since the January 2012 denial includes VA treatment records and lay statements provided by the Veteran. The Board finds that evidence submitted following the January 2012 rating decision is not new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the January 2012 rating decision is cumulative and redundant of the evidence of record at the time of the prior final denial of the claim, and does not relate to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156. Therefore, because new and material evidence has not been received, the Board is unable to reopen the claim of entitlement to service connection for a right shoulder disability. REASONS FOR REMAND The Veteran’s claims seeking ratings in excess of 10 percent for residuals of Guillain-Barre syndrome affecting the Veteran’s bilateral upper and lower extremities are remanded. The Veteran seeks increased ratings for residuals of Guillain-Barre syndrome affecting his left upper extremity, right upper extremity, left lower extremity, and right lower extremity. Guillain-Barre syndrome is: “a rare disorder that causes your immune system to attack your peripheral nervous system (PNS). The PNS nerves connect your brain and spinal cord with the rest of your body. Damage to these nerves makes it hard for them to transmit signals. As a result, your muscles have trouble responding to your brain. No one knows what causes the syndrome. Sometimes it is triggered by an infection, surgery, or a vaccination.” Nat’l Inst. of Health: Nat’l Inst. of Neurological Disorders and Stroke, Guillain-Barre Syndrome, MedlinePlus (October 2, 2018), https://medlineplus.gov/guillainbarresyndrome.html. The RO has assigned a 10 percent disability rating for each extremity affected by residuals of Guillain-Barre syndrome, under the Schedule of Ratings for Diseases of the Peripheral Nerves, as described in 38 C.F.R. § 4.124a. A February 2016 VA examination report, titled “Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaire,” discusses the Veteran’s Guillain-Barre syndrome and describes the Veteran as suffering from “RESIDUAL PARASTHESIAE IN HIS FINGERS AND TOES.” The February 2016 VA examination report does not describe the peripheral nerves affected by the Veteran’s residuals of Guillain-Barre syndrome, or the severity of these residuals. It appears that the Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaire is not the optimum Disability Benefits Questionnaire for assessing disabilities affecting the peripheral nervous system, or that the RO should also have used the Peripheral Nerves Conditions Disability Benefits Questionnaire. The question before the Board involves the severity of the Veteran’s symptoms caused by residuals of his Guillain-Barre syndrome. Regardless of the form used, or the method chosen to record a veteran’s symptoms, the RO must provide “accurate and fully descriptive” medical examination reports. See 38 C.F.R. § 4.1. As it is imperative that the Veteran be provided with an examination that evaluates the severity of the residuals of his Guillain-Barre syndrome, including any effects his Guillain-Barre syndrome may have had on his peripheral nervous system, a new examination is required to resolve the Veteran’s claims. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records not already of record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran’s service-connected residuals of Guillain-Barre syndrome affecting his bilateral upper and lower extremities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner must 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 residuals of Guillain-Barre syndrome affecting his bilateral upper and lower extremities alone and discuss the effect of the Veteran’s residuals of Guillain-Barre syndrome affecting his bilateral upper and lower extremities 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). As part of any examination provided, the RO should ensure that the examiner tasked with assessing the Veteran is provided with Disability Benefits Questionnaires that will allow the examiner to capture the full scope of the Veteran’s symptoms, including those affecting the Veteran’s   peripheral nervous system, due to residuals of Guillain-Barre syndrome. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Moore, Associate Counsel