Citation Nr: 18146264 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-35 755 DATE: October 31, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for mixed bony lesion of the right humerus (claimed as right shoulder condition) is granted. REMANDED Entitlement to service connection for mixed bony lesion of the right humerus (claimed as right shoulder condition), to include as secondary to service-connected mechanical thoracolumbar strain and right shoulder bursitis, is remanded. FINDING OF FACT 1. An unappealed January 2014 rating decision denied service connection for mixed bony lesion of the right humerus (claimed as right shoulder condition). 2. Evidence received since the January 2014 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for mixed bony lesion of the right humerus (claimed as right shoulder condition). CONCLUSION OF LAW New and material evidence has been received and the claim of entitlement to service connection for mixed bony lesion of the right humerus (claimed as right shoulder condition) is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 2007 to November 2012, with additional service in the Army National Guard. This appeal comes before the Board of Veteran’s Appeals (Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a mixed bony lesion of the right humerus (claimed as right shoulder condition). The Board notes that although the RO reopened this claim in the July 2016 Statement of the Case (SOC), the question of whether new and material evidence has been received to reopen such 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 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with the 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 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the evidence already in the record, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for entitlement to service connection for a mixed bony lesion of the right humerus (claimed as right shoulder condition) was denied by a January 2014 rating decision based on a finding that the Veteran’s disability neither began in military service nor was caused by some event or experience during service. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision; therefore, it is final. Since the prior denial of the claim in January 2014, the new and material evidence received contains other theories of entitlement pertinent to the Veteran’s claim (namely, secondary service connection). Accordingly, the claim for service connection for a mixed bony lesion of the right humerus (claimed as right shoulder condition) is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a mixed bony lesion of the right humerus (claimed as right shoulder condition), to include as secondary to service-connected mechanical thoracolumbar strain and right shoulder bursitis, remanded. While further delay is regrettable, additional evidentiary development is required before the Veteran’s claim may be adjudicated on its merits. The Veteran seeks service connection for mixed bony lesion of the right humerus (claimed as right shoulder condition) and contends that this disability arose as a direct result of parachuting activities while serving in Airborne. He also contends that it was aggravated by his service-connected upper and lower back disability and his right shoulder bursitis. The Veteran’s VA treatment records indicate that his primary complaint of right shoulder pain followed a fall down stairs in February 2012. An MRI showed multifocal labral tears with minimal bony deformity. The Veteran elected not to have surgery however because he was in officer training school and could not take any extended time off until August 2016. The Veteran reported that while he was not limited in with his daily activities he experienced pain with weight lifting and required items for officer training including push-ups. See VA Medical Center, Omaha Division, Physical Therapy Consult, December 2015. The MRI further indicates that the Veteran’s imaging suggests a question of a subtle prior Hill-Sachs deformity versus tug related changes at the (right) posterior humeral head. Correlation with any prior shoulder dislocation was suggested. See Right Shoulder MRI Report, October 2015. The Veteran was afforded VA examination in July 2016. The July 2016 VA examiner opined that the cause of the mid-right humerus lesion was unknown because many can present themselves without injury. Therefore, the examiner could not say whether it had any relationship to bursitis and could not provide and comment about true aggravation. The standard used by the VA examiner in evaluating the nexus or lack thereof between the Veteran’s disability and his active service was not the appropriate equipoise standard. The Board finds therefore that the July 2016 VA Examination is inadequate upon which to adjudicate the instant matter and remand for another VA examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, records regarding a fall injury during active duty in February 2012 are not associated with the Veteran’s claims file. The Veteran’s military personnel record subsequent to March 2014, including information regarding officer training and other active duty service is also not of record. Remand for further records development is also warranted. The matter is REMANDED for the following action: 1. Contact the Veteran and ask that he identify the provider(s) of any additional treatment or evaluation he has received for his mixed bony lesion of the right humerus (claimed as right shoulder condition) records of which are not already associated with the claims files, and to provide any releases necessary for VA to secure such records of treatment or evaluation. Obtain missing treatment records from all private and VA providers, to specifically include records from the February 2012. 2. Obtain the Veteran’s updated military and service treatment records. Take all appropriate efforts to confirm the Veteran’s dates of ACDUTRA and INACDUTRA, and enumerate such dates to the extent possible by month, day, and year. This enumeration must be clear and should consist of more than simply the Veteran’s pay records or retirement points. 3. After all available records have been associated with the file, schedule the Veteran for new VA examinations for his mixed bony lesion of the right humerus (claimed as right shoulder condition). The examiner should be provided with the complete dates of the Veteran’s ACDUTRA and INACDUTRA service as enumerated above. The Veteran’s claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on the examination results and a review of the pertinent medical history, the examiner should provide opinions responding to the following: (a.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s mixed bony lesion of the right humerus disability (claimed as right shoulder condition) is etiologically related to his active duty service or any period of ACDUTRA or INACDUTRA? (b.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s mixed bony lesion of the right humerus disability (claimed as right shoulder condition) was aggravated (worsened beyond its natural progression) by his active duty service or any period of ACDUTRA or INACDUTRA? (c.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s mixed bony lesion of the right humerus disability (claimed as right shoulder condition) was aggravated (worsened beyond its natural progression) by his service-connected mechanical thoracolumbar strain? (d.) Is it at least as likely as not (50 percent or better probability) that the Veteran’s mixed bony lesion of the right humerus disability (claimed as right shoulder condition) was aggravated (worsened beyond its natural progression) by his service-connected right shoulder bursitis? A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel