Citation Nr: 18146353 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-17 978 DATE: October 31, 2018 ORDER The application to reopen the claim of entitlement to service connection for a left shoulder condition, is granted. REMANDED Entitlement to service connection for a left shoulder condition is remanded. FINDINGS OF FACT 1. In October 2011, the Regional Office (RO) denied reopening the claim of entitlement to service connection for a left shoulder condition. The Veteran did not appeal this decision and it became final. 2. The additional evidence received since the October 2011 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left shoulder condition. CONCLUSIONS OF LAW 1. The October 2011 rating decision, which denied reopening the claim of entitlement to service connection for a left shoulder condition is final. 38 U.S.C. §7105 (2012); 38 C.F.R. §§20.302, 20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for a left shoulder condition has been met. 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 in the United States Marine Corps from April 1992 to April 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2011 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2018, the Veteran testified at a Board hearing. The transcript is of record. 1. New Material Evidence to Reopen Left Shoulder Condition A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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 determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In an October 2011 rating decision, the Veteran’s claim of entitlement to service connection was denied because the Veteran did not submit new and material evidence. The RO determined that evidence documenting a current left shoulder condition nor evidence linking it to military service. At the time of that decision the pertinent evidence of record included the Veteran’s service treatment records, the report of a VA examination from September 1996, and post-service VA treatment records. The Veteran did not appeal this decision, nor did he submit any relevant evidence within one year of the decision; therefore, it was a final decision. See 38 U.S.C. §7105 (2012); 38 C.F.R. §§3.156 (b); 20.302; 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (2010). The evidence received since the October 2011 rating decision includes a VA examination for the Veteran’s shoulder condition from October 2013, additional VA treatment records, 4 buddy statements corroborating the Veteran’s claim that they remember the Veteran having shoulder pain while in service, and a statement from the Veteran expressing his contentions. This evidence is new, as it was not previously submitted to the agency decision makers. Some of it is also material as it relates to unestablished facts necessary to substantiate the claim. Specifically, the medical evidence establishes that the Veteran has a current disability of the left shoulder and the lay evidence supports the Veteran’s contentions that the disability was caused by an in-service event. Accordingly, the claim of entitlement to service connection for a lower back disability is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The appeal is granted to that extent only. REASONS FOR REMAND 1. Service Connection for Left shoulder condition is remanded. In October 2013, a VA examiner opined that the Veteran’s labral tear, diagnosed in July 2012, is less likely as not due to military service. The rationale was based, in part, on the fact that physical examination of the shoulder was normal at the time of the February 1996 service separation examination. Subsequent to the examination report being prepared, the Veteran credibly testified that he has had continuous problems with both shoulders since an in-service event but treatment concentrated on the right shoulder as this was worse than the left. In support of this testimony, the Veteran has submitted buddy statements from fellow servicemen who remembered the Veteran having problems with both shoulders during active duty. Furthermore, the report of a September 1996 VA examination report includes a diagnosis of residual left shoulder strain. This was just five months after the Veteran's discharge. All this evidence indicates continuity of left shoulder symptomology from the time of the in-service event to the present. The October 2013 examination report did not address this. Although the examiner that conducted the October 2013 examination rendered an opinion based on the evidence available at the time, the rationale of is inadequate because it does not take into consideration newly submitted evidence. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“[A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”) Accordingly, the AOJ should obtain an addendum etiology opinion that properly addresses the Veteran’s contentions and lay evidence. The matter is REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic records. If any identified records are not obtained (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran’s claims file, including a copy of this remand. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left shoulder condition is related to his active service, or is caused by or aggravated by military service. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner must specifically consider the Veteran's credible history of having continuous left shoulder symptoms since the time of the in-service event and the opinion and rationale should reflect such consideration. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ronquillo, Law Clerk