Citation Nr: 18145157 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 08-17 748 DATE: October 26, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for a right shoulder disability, and the application to reopen is allowed; to this extent only, the claim is granted. REMANDED Entitlement to service connection for right shoulder disability is remanded. Entitlement to a disability rating higher than 10 percent for right knee instability is remanded. Entitlement to a disability rating higher than 10 percent for right knee arthritis is remanded. Entitlement to a disability rating higher than 10 percent for left knee arthritis is remanded. FINDINGS OF FACT 1. In an unappealed February 2006 rating decision, the RO denied the Veteran’s claim for service connection for a right shoulder disability. 2. Evidence received since the last final rating decision in February 2006 raises a reasonable possibility of substantiating the claim of service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The February 2006 rating decision denying service connection for a right shoulder disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the February 2006 rating decision is new and material, and the claim of service connection for a right shoulder disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to October 2001. As pertinent here, in September 2017, the Board denied reopening the Veteran’s service connection claim for a right shoulder; denied increased rating higher than 10 percent for right knee arthritis; denied increased rating higher than 10 percent for a left knee arthritis; and, denied increased rating higher than 20 percent for a right knee instability. The Veteran appealed these portions of the Board’s September 2017 decision to the United States Court of Appeals for Veterans Claims (Court), and by a June 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR), that vacated and remanded the portions of the Board’s decision that denied reopening the claim for a right shoulder disability and the increased rating claims for the Veteran’s right and left knee disabilities. The Court did not disturb the Board’s decision that reopened and denied service connection for sinusitis, reopened and granted service connection for headaches, and granted a separate 20 percent rating for a left knee instability under diagnostic code 5257. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing 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 claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Discussion The June 2018 JMR found incorrect the Board’s September 2017 finding that the February 2006 rating decision denied service connection for a right shoulder disability on the basis of no evidence of a nexus. In fact, the February 2006 rating decision denied service connection for a right shoulder on the basis of no evidence of a current disability. In this regard, the RO denied the Veteran’s service connection claim for a right shoulder disability in a February 2006 rating decision, finding that there was no evidence of a current disability. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the February 2006 denial of the claim includes medical evidence showing a currently diagnosed disability, to include right shoulder tendonitis with mild impingement and arthritis. This evidence relates to the unestablished element of a current disability in the prior denial. The additional evidence received is therefore new and material, and the criteria for reopening the claim for service connection for a right shoulder disability are therefore met. REASONS FOR REMAND A remand is necessary to provide the Veteran with a VA examination to determine the nature and etiology of any currently diagnosed right shoulder disability. Notably, the Veteran’s service treatment records show that he had complaints of right shoulder pain; he competently reported symptoms since service; and there is evidence of a current disability. Accordingly, a VA examination is indicated. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the increased rating claims for right and left knee disabilities, the parties agreed that the Board relied on inadequate VA examinations that did not sufficiently address the impact of flare-ups on the Veteran’s range of knee motion. In this regard, the June 2018 JMR found that a new adequate VA examination is necessary because both the December 2011 and June 2015 VA examinations failed to consider whether the Veteran’s reported flare-ups resulted in any additional range of motion limitation. Specifically, the June 2015 VA examiner indicated that it was not possible to estimate range-of-motion in degrees during a flare-up without resorting to mere speculation because the examination was not conducted during a flare-up. As noted in the June 2018 JMR, the Court held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Therefore, a new VA examination must be obtained before the knee claims can be decided on the merits. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, provide the Veteran with a VA examination to determine the nature and etiology of his right shoulder disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right shoulder disabilities since the March 2016 petition to reopen. (b) For each currently diagnosed right shoulder disability, provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) had its onset during service or is otherwise causally or etiologically related to it. In doing so, please specifically address the in-service treatment and the Veteran’s lay assertions as to the nature and onset of his symptoms. The examiner should provide a complete rationale for all opinions. 3. Then, provide the Veteran with a VA examination to identify the severity of his right and left knee disabilities. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail.   After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his right and left knee disabilities. In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. In other words, the examiner should estimate any additional loss of motion during flare-ups based on the Veteran’s reported history, provided that such history is generally consistent with the overall disability picture. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The examiner should provide a complete rationale for all opinions. 4. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel