Citation Nr: 18141145 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-31 351 DATE: October 9, 2018 ORDER The appeal to reopen a claim for service connection for a left shoulder disability is granted. The appeal to reopen a claim for service connection for a right shoulder disability is granted. Service connection for left shoulder disability is granted. Service connection for right shoulder disability is granted. FINDINGS OF FACT 1. In an unappealed July 10, 2012 rating decision, the RO denied service connection for a left shoulder disability. The RO determined the evidence failed to demonstrate the disability was incurred in or caused by service. Evidence received after the July 2012 denial includes a new diagnosis of left shoulder arthritis that was (1) not previously submitted to agency decision makers and (2) relates to an unestablished fact necessary to substantiate a claim. 2. In an unappealed July 10, 2012 rating decision, the RO denied service connection for a right shoulder disability. The RO determined the evidence failed to demonstrate the disability was incurred in or caused by service. Evidence received after the July 2012 denial includes a new diagnosis of right shoulder arthritis that was (1) not previously submitted to agency decision makers and (2) relates to an unestablished fact necessary to substantiate a claim. 3. The evidence is evenly balanced for and against a finding that the Veteran’s left shoulder disability was incurred in service. 4. The evidence is evenly balanced for and against a finding that the Veteran’s right shoulder disability was incurred in service. CONCLUSIONS OF LAW 1. The July 2012 rating decision that denied service connection for a left shoulder disability became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). New and material evidence has been received. The service connection claim for left shoulder disability may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The July 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. New and material evidence has been received. The service connection claim for right shoulder disability may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left shoulder disability has been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a right shoulder disability has been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to August 2011. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by the Winston Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence I. Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Cf. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The Court of Appeals for Veteran’s Claims has held that the requirement of new and material evidence raising a reasonable possibility of substantiating a claim is a low threshold. Specifically, the Court viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). II. Factual Background In an unappealed July 10, 2012 rating decision, the RO denied service connection for both a left and right (“bilateral”) shoulder disability. The RO determined the evidence failed to demonstrate the disability was incurred in or caused by service. In a July 24, 2012 notification letter, the RO also indicated that these claims were denied because the “evidence does not show a current diagnosed disability.” In October 2013, the Veteran received a new diagnosis from a private physician for bilateral shoulder osteoarthrosis in addition to other ailments. This diagnosis was conducted by a consultant radiologist evaluating a Magnetic Resonance Imaging (MRI) test. In an April 2014 notification letter, the RO notified the Veteran that the appeal period had ended for the shoulder claims and the July 10, 2012 decision was final. Additionally, the RO provided the Veteran advice on how to reopen the claim with new and material evidence. In May 2015, the private physician who referred the Veteran for the MRI examination competed a VA “Shoulder and Arm Conditions Disability Benefits Questionnaire.” The doctor opined that, “[t]his is an ongoing condition of both shoulders that started during service (as per examination of Jul[y] 12, 2011).” In a July 2014 rating decision and July 2015 statement of the case, the RO stated the claims for both left and right shoulder pain were reopened. III. Analysis Although the RO reopened the Veteran’s claim of service connection and decided the issues on the merits, the question of whether new and material evidence has been received to reopen this claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). If the Board finds that this evidence has not been offered, that is where the analysis must end. See Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The October 2013 diagnosis of osteoarthrosis in both the Veteran’s shoulders is new because it was not previously submitted to agency decision makers. It is also not cumulative or redundant. Prior to obtaining this evidence, there were only subjective reports of pain without a diagnosis. This is the first diagnosis. This new evidence is also material. Per the RO notification letter dated July 24, 2012, one of the reasons the Veteran’s claim was denied was because he did not have evidence of a diagnosed disability. Therefore, the October 2013 diagnosis is material because it relates to an unestablished fact that could support the Veteran’s claim. The May 2015 Disability Benefits Questionnaire is also new and material because it was not in the record at the time of the prior adjudication and it relates to whether the Veteran’s disability is related to service. In conclusion, the Veteran has provided new and material evidence and the RO correctly reopened the Veteran’s claim for bilateral shoulder pain. Service Connection I. Legal Criteria “Service connection” means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. Normally, to prevail on a direct service connection claim, there must be competent evidence of (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal link (“nexus”) between the in-service disease or injury and the current disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, for the VA-defined chronic diseases listed in 38 C.F.R. § 3.309 (a), including arthritis, if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service - no matter how remote - will be entitled to service connection without having to satisfy the medical nexus requirement, unless clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303 (b); Cf. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir 2013). If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this relaxed evidentiary provision. Cf. Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service itself “establishes the link, or nexus” to service and “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period”). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Cf. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). II. Factual Background The Veteran asserts entitlement to service connection for bilateral shoulder arthritis disabilities, which he states were incurred in or are related to his active service. While on active duty, the Veteran sought medical attention for shoulder pain, stemming at least in part from his lifting heavy items in a warehouse. On a September 2016 VA Form 9, the Veteran generally described these attempts to seek medical treatment during his career. He recalled that he was directed to attend physical therapy and prescribed anti-inflammation medication as a result. His service treatment records reflect right shoulder issues, including pain, as noted on physical therapy consultations during the fall of 1999. While still in service, the Veteran also reported bilateral shoulder pain which was noted on his June 2011 (received by a VA RO on July 12, 2011) retirement physical/VA examination prior to discharge. The Veteran stated that his symptoms had existed for more than 5 years. (He elaborated that there is more pain in his left shoulder than the right.) During the retirement physical, the examiner observed and noted tenderness, reduced range of motion, and pain due to repeated movement. Although the examiner reviewed X-rays of his acromioclavicular joints, the examiner could not find a cause or render a diagnosis for the Veteran’s pain and ultimately concluded that the Veteran’s symptoms and medical history were consistent with early acromioclavicular osteoarthritis and might require ongoing medical support. Post service, an October 2013 Magnetic Resonance Imaging (MRI) examination diagnosed the Veteran with bilateral shoulder osteoarthrosis in addition to other ailments. In May 2015, the private physician who referred the Veteran for the MRI completed a VA “Shoulder and Arm Conditions Disability Benefits Questionnaire” and opined that, “[t]his is an ongoing condition of both shoulders that started during service (as per examination of Jul[y] 12, 2011).” VA treatment records reveal repeated reports of bilateral shoulder pain before and after initiating the appeal processes. See, e.g., April 2014 VA medical treatment record; May 2015 Disability Benefits Questionnaire; July 2015 Compensation and Pension Record Interchange report. Additionally, the record reflects that the Veteran is currently taking pain medication for his shoulder issues. For example, the May 2018 Appellant’s Brief states that he is taking pain medication three times a day and has received steroid injections to help with pain and limited range of motion. III. Analysis The Veteran asserts entitlement to service connection for his currently diagnosed bilateral shoulder disability that initially manifested during his active service. In this regard, a Veteran is qualified (“competent”) to report the onset and continuity of orthopedic symptoms because these are observable by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Here, the Veteran reported his symptoms of shoulder pain while still on active duty, as noted especially in his retirement physical. The report is highly probative. First, it is evidence that the Veteran’s reported symptoms were accurately noted while in service. Second, the VA examiner’s functional assessment that the “[V]eteran’s history is consistent with early [acromioclavicular] osteoarthritis” and “may require ongoing medical support” corroborate the Veteran’s report of the onset of a bilateral shoulder disability while on active duty. Additionally, the Veteran has continued to report shoulder pain after service. VA treatment records reveal repeated reports of bilateral shoulder pain before and after initiating the appeal processes. This evidence is also competent and credible and corroborates with the Veteran’s claim. Therefore, a causal link (“nexus”) has been established by means of continuity of symptoms while on active duty until the present. These reported symptoms were also diagnosed as being consistent with early arthritis and are of great probative value. Furthermore, the diagnosis of acromioclavicular osteoarthrosis from the October 2013 MRI report is highly probative. In contrast to the X-rays taken as part of the retirement physical that did not locate or identify the cause of the Veteran’s shoulder pain, the MRI is a more detailed three-dimensional representation of the shoulder. Thus, the three-dimensional imagery is likely to be more informative, increasing the probative value. After the MRI of October 2013, the physician who referred the Veteran for the MRI test completed a VA “Shoulder and Arm Conditions Disability Benefits Questionnaire” in May 2015. Under the “describe the history” section of the questionnaire, the doctor noted, “[t]his is an ongoing condition of both shoulders that started during service (as per examination of Jul[y] 12, 2011).” Given that there is continuity of symptoms dating back to Veteran’s service and that arthritis is a prescribed chronic disease entitled to presumptions of chronicity and continuity of symptoms in §§ 3.303(b), 3.307, and 3.309, the doctor’s statement (that the disability began during active service) is also of significant probative value. There is no opinion to the contrary. The RO denied the claim in part because that the treating physician who completed the May 2015 questionnaire did not review the entire claims folder. However, a private medical opinion may not be discounted solely because the private doctor did not review the entire record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the physician reviewed the Veteran’s retirement physical, which was conducted in service, and his civilian medical reports, which can be used to further demonstrate continuity of symptoms. Therefore, the physician was adequately familiar with the Veteran’s relevant medical history and his statement is of great probative value. In conclusion, the Veteran has demonstrated an in-service incurrence of bilateral shoulder symptoms that have continued to progress since his discharge, and which have formed the basis for his currently diagnosed bilateral shoulder disability. Further, the probative medical evidence of record relates his current bilateral shoulder condition to his active service. Because of this, the evidence is at least evenly balanced for and against (in “relative equipoise”) a finding that the Veteran’s bilateral shoulder disability began during service. Accordingly, the benefit of the doubt must be resolved in favor of the Veteran and service connection is granted for the Veteran’s bilateral shoulder disabilities. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs