Citation Nr: 18142155 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 15-31 002 DATE: October 16, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for right shoulder disability based on the submission of new and material evidence is granted. REMANDED Entitlement to service connection for right shoulder disability is remanded. FINDING OF FACT 1. A December 1998 rating decision denied, in pertinent part, the claim of entitlement to service connection for right shoulder disability; the Veteran did not perfect an appeal with respect to this issue. 2. The evidence received since the December 1998 rating decision, by itself, or in conjunction with previously considered evidence, is new and relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for right shoulder disability. CONCLUSION OF LAW 1. The December 1998 rating decision denying service connection for right shoulder disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the claim of service connection for right shoulder disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 1. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for right shoulder disability Legal Principles In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). VA must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). In order to satisfy these requirements, the evidence “must be both new and material.” Smith v. West, 12 Vet. App. 312, 314 (1999). “New and material evidence” is defined as follows: 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 substantiating the claim. 38 C.F.R. § 3.156(a). In making the determination of materiality, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Discussion The Board has considered whether the evidence submitted since the June 2009 rating decision constitutes new and material evidence sufficient to reopen the claim of service connection for migraines, and finds that it does. The evidence was not of record at the time of the prior denial and relates to an unestablished fact, by itself or when considered with other evidence, necessary to substantiate the claim. For instance, the primary basis for denial of service connection in December 1998 was the absence of a chronic disability. In January 2015, the Veteran was provided with a new VA examination. Report of the January 2015 VA examination reflects, in pertinent part, a diagnoses of right shoulder impingement syndrome and glenohumeral joint osteoarthritis. Accordingly, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for right shoulder disability must be granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for right shoulder disability is remanded. The Board notes that additional VA medical evidence was added to the record after certification to the Board and subsequent to an August 2015 statement of the case without waiver of Agency of Original Jurisdiction (AOJ) consideration. In a letter dated in August 2018, the Veteran was notified that additional evidence which was not previously considered in a decision by the AOJ has been received, and that he had a right to have the AOJ review them prior to the Board’s review of the case, or alternatively, he could waive his right to AOJ review. In response, the Veteran expressed his desire to have this matter remanded back to the AOJ for review of additional evidence. Accordingly, the Board finds that the claim on appeal must be remanded to the AOJ for readjudication and issuance of a supplemental statement of the case (SSOC). The matter is REMANDED for the following action: 1. Obtain all outstanding post-service medical treatment records from VA treatment facilities. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a SSOC and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel