Citation Nr: 18145023 Decision Date: 10/29/18 Archive Date: 10/25/18 DOCKET NO. 14-06 982 DATE: October 29, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right shoulder disability, to include rotator cuff syndrome and degenerative joint disease, is granted. New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a right knee disability, to include degenerative arthritis, is granted. Entitlement to a temporary total evaluation due to convalescence for right shoulder treatment is dismissed. REMANDED Entitlement to service connection for a right shoulder disability, to include rotator cuff syndrome and degenerative joint disease, is remanded. Entitlement to service connection for a right knee disability, to include degenerative arthritis, is remanded. FINDINGS OF FACT 1. Service connection for right shoulder arthritis was denied in an October 2007 rating decision; neither a notice of disagreement nor new and material evidence was received within one year of the notice of the rating decision being mailed. 2. Since the last final October 2007 rating decision that denied service connection for right shoulder arthritis, VA received evidence that is new and material with respect to the claim. 3. Service connection for right knee arthritis was denied in the October 2007 rating decision; neither a notice of disagreement nor new and material evidence was received within one year of the notice of the rating decision being mailed. 4. Since the last final October 2007 rating decision that denied service connection for right knee arthritis, VA received evidence that is new and material with respect to the claim. 5. On the record at the May 2018 Travel Board hearing, before promulgation of a decision in this appeal, the Veteran withdrew his appeal for entitlement to a temporary total evaluation due to convalescence for right shoulder treatment. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied service connection for right shoulder arthritis became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302(a), 20.1103. 2. Since the October 2007 rating decision, new and material evidence has been received to reopen the previously denied claim of service connection for a right shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The October 2007 rating decision that denied service connection for right knee arthritis became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302(a), 20.1103. 4. Since the October 2007 rating decision, new and material evidence has been received to reopen the previously denied claim of service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for withdrawal of the appeal for entitlement to service connection for entitlement to a temporary total evaluation due to convalescence for right shoulder treatment have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from October 1967 to October 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The May 2013 rating decision denied service connection for a right knee injury and denied service connection for a right shoulder injury, both due to no new and material evidence. The appellant timely appealed the May 2013 rating decision with a notice of disagreement (NOD) received by VA in the following month. After the RO issued a statement of the case (SOC) in June 2014, the appeal was perfected with the timely filing of a substantive appeal in the following month. The November 2014 rating decision denied a temporary total evaluation for treatment for a service-connected or other disability subject to compensation. The appellant timely appealed the November 2014 rating decision with an NOD received by VA in the following month. After the RO issued an SOC in February 2016, the appeal was perfected with the timely filing of a substantive appeal in April 2016. The appellant and his spouse testified before the undersigned Veterans Law Judge at a May 2018 Travel Board hearing. A hearing transcript has been associated with the claims file and reviewed. The undersigned kept the record open until August 15, 2018 to allow the appellant to submit additional evidence. No additional evidence has been received. Service Connection The June 2014 statement of the case reopened the Veteran’s claims of service connection for a right shoulder injury and for a right knee injury. Nevertheless, the issue of whether new and material evidence has been presented must be determined by the Board de novo, as the matter is a jurisdictional issue that the Board must address. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The appellant’s claims of service connection for right shoulder injury and right knee injury were originally denied by way of an October 2007 rating decision. The Veteran failed to file a timely NOD, and no new and material evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per § 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The claims of service connection for a right shoulder disability and service connection for a right knee disability are already encompassed by, and are not distinct from, the previously denied claims of service connection for right shoulder arthritis and right knee arthritis, respectively, because they form the same factual basis. As such, the claim is not a new petition and the Board does not have jurisdiction over the matter unless new and material evidence has been received. The claims of entitlement to service connection for each of a right shoulder disability and a right knee disability are reopened because since the final October 2007 rating decision denied service connection for a right shoulder injury and a right knee injury, new and material evidence has been received with respect to each claim. The RO issued a decision in October 2007 that denied the Veteran’s claims of service connection for right shoulder arthritis and service connection for right knee arthritis. It found that neither condition was occurred in or caused by service, and that the criteria for chronicity and continuity of symptomatology have not been met. It noted that the Veteran’s service treatment records did not show treatment or a diagnosis related to the right knee or right shoulder. Since the last final October 2007 RO denial of service connection for right shoulder arthritis, the Veteran indicated, for example in a June 2011 statement and his June 2013 notice of disagreement, that he injured his shoulder from a fall out of the top bunk bed while stationed in Germany, and that because the injury occurred during field maneuvers the treatment may not have been reflected in the service treatment records. This evidence is new, having not been previously considered by decision makers, and also material as it addresses a fact necessary to substantiate the previously denied claim: an in-service incurrence. Therefore, the Board finds that new and material evidence has been received and the claim of service connection for a right shoulder disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Since the last final October 2007 RO denial of service connection for right knee arthritis, the Veteran indicated at the May 2018 Board hearing that he also injured his right knee from the fall out of the top bunk bed while stationed in Germany. This evidence is new, having not been previously considered by decision makers, and also material as it addresses a fact necessary to substantiate the previously denied claim: an in-service incurrence. Therefore, the Board finds that new and material evidence has been received and the claim of service connection for a right knee disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing. 38 C.F.R. § 20.204. On the record at the May 2018 Travel Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal for entitlement to a temporary total evaluation due to convalescence for right shoulder treatment in accordance with 38 C.F.R. § 20.204. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed, under oath, that he was requesting a withdrawal as to that issue. The withdrawal was received by the Board prior to the promulgation of a decision on the appeal. Based on the foregoing, there remain no allegations of error of fact or law for appellate consideration as to these issues. The Board has no jurisdiction to review the appeal for entitlement to temporary total evaluation due to convalescence for right shoulder treatment; thus, the appeals for those issues are dismissed. See 38 C.F.R. §§ 20.201; 20.204. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability, to include rotator cuff syndrome and degenerative joint disease, is remanded. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether any right shoulder disability is at least as likely as not related to his in-service fall while stationed in Germany. The Board finds that a VA examination is warranted for a full and fair adjudication of this issue. 2. Entitlement to service connection for a right knee disability, to include degenerative arthritis, is remanded. As above, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether any right knee disability is at least as likely as not related to (1) his in-service fall from the top bunk while stationed in Germany, and (2) his in-service arthritic-like pain aggravated by the cold weather as reflected in a December 1969 service treatment record. An addendum to the November 2013 VA examination (and accompanying January 2014 addendum) is warranted. Additionally, on remand, any outstanding, pertinent VA treatment records should be obtained. These include any treatment records reflecting the Veteran having a right knee arthrotomy at the East Orange VA Center in 1975 and any VA treatment records from Charleston. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records, *to include any treatment records reflecting the Veteran having a right knee arthrotomy at the East Orange VA Center in 1975 and any VA treatment records from Charleston*. As many attempts should be made as necessary to obtain the VA records, to include requesting a specific negative response if no records are located. The appellant is to be notified of any unsuccessful effort to obtain outstanding VA and private treatment records to allow the opportunity to obtain and submit those records for VA review. Moreover, notify the appellant that he may submit VA Forms 21-4142 and 21-4142a to authorize any private medical provider to disclose and release to VA information on the Veteran’s treatment, and then request those medical records from the private medical provider(s). Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA 2. After all development has been completed and returned from step 1 above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disability, to include rotator cuff syndrome and degenerative joint disease. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s fall during service. The examiner must also opine whether any right shoulder disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, and/or (3) was noted during service with continuity of the same symptomatology since service. Consider all lay statements and medical evidence, to include lay statements made in June 2011 and June 2013, and at the May 2018 Board hearing. Consider also the Veteran’s Social Security Administration (SSA) records, VA treatment records, and private treatment records. Provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. 3. After all development has been completed and returned from step 1 above, obtain an addendum opinion from an appropriate clinician regarding whether any right knee disability is at least as likely as not related to the Veteran’s service, to include (a) his in-service fall from the top bunk while stationed in Germany, and (b) his in-service arthritic-like pain aggravated by the cold weather as reflected in a December 1969 service treatment record. The clinician must also opine whether any right knee disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Consider all lay statements and medical evidence, to include lay statements made at the May 2018 Board hearing and the November 2013 VA examination (and accompanying January 2014 addendum). Consider also the Veteran’s SSA records, VA treatment records, and private treatment records. Provide a comprehensive rationale for any opinions and conclusions offered. If a requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. If any medical literature is cited, then provide a copy of it or a link to it. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel