Citation Nr: 18146911 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 16-27 272 DATE: November 2, 2018 ORDER New and material evidence having been received, the claims of entitlement to service connection for residuals of right collarbone fracture is reopened. Entitlement to service connection for disabilities of the right shoulder, to include residuals of a right collarbone fracture, is granted. FINDINGS OF FACT 1. The Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's service connection claim for residuals of a right collarbone fracture in an October 2013 rating decision; the Veteran did not appeal that decision, nor did he submit new and material evidence within one year. 2. The evidence received since the October 2013 rating decision relates to an unestablished fact necessary to substantiate his service-connection claim. 3. The evidence of record favors a finding that the Veteran’s right shoulder disabilities are related to injuries sustained during active service. CONCLUSIONS OF LAW 1. The October 2013 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a right collarbone fracture. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for disabilities of the right shoulder, to include residuals of a right collarbone fracture, have been met. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1989 to July 1992 and from May 1996 to July 1999. He attended the U.S. Naval Academy in between these duty periods. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision made by the RO in August 2015. New and Material Evidence The Veteran contends that he has provided new and material evidence sufficient for reopening his previously denied claim for entitlement to service connection for residuals of a right collarbone fracture. New evidence means existing evidence not previously submitted to agency decision makers. 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). The Court held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156 (a) creates a low threshold to reopen and emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." 24 Vet. App. 110, 120-21 (2010). In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion. Id. For establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed a service connection claim for residuals of right collarbone fracture in April 2013, which was denied in an October 2013 rating decision. He was notified of the outcome and did not file a notice of disagreement within one year, nor was additional evidence pertinent to the claim received within one year of that decision. See 38 C.F.R. § 3.156 (b). As such, the April 2013 rating decision became final based on the evidence then of record. 38 C.F.R. § 20.1103. The Veteran filed an application to reopen his service-connection claim in May 2015. The evidence previously considered at the time of the last final decision (i.e. April 2013) consisted of the Veteran’s Service Treatment Records (STRs), as well as VA treatment records dated from October 2000 to April 2013. The right collarbone fracture claim was previously denied based on the RO’s conclusion that the condition neither occurred in, nor was caused by service. Evidence pertaining to the Veteran’s right shoulder claim since the last final rating decision includes private treatment records documenting diagnoses of a torn biceps tendon, rotator cuff tears of the supraspinatus and infraspinatus muscles and tendons, a superior lateral anterior posterior labrum tear or SLAP lesion, and subsequent bone spurs, and osteoarthritis in the Veteran’s right shoulder, updated VA treatment records, statements from the Veteran, two lay statements from service members who served with the Veteran at the time of the claimed occurrence, and a private medical opinion offering a positive nexus opinion as to the claimed right shoulder disability. This evidence relates to unestablished facts necessary to prove the service connection claims; namely, whether the in-service element of a service connection claim is met, and whether a relationship exists between the current disabilities and an in-service injury. As such, the evidence is both new and material, and the Board finds that the reopening of the claims for residuals of right collarbone fracture is warranted. Service Connection The Veteran contends that he has a right shoulder disability that had its onset in or is otherwise related to his period of active duty service. Specifically, he states that he injured his right shoulder in performance of his duties while aboard the USS John L. Hall during his most recent period of active duty service. See April 2018 Hearing Transcript at 4. He asserts that he was frequently tossed against the walls of the ship loading and unloading people and cargo, and that on several occasions he hurt his shoulder in this fashion, to include fracturing his clavicle. Since service, he has undergone two shoulder surgeries. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disabilities diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). It is undisputed that the Veteran has a current right shoulder disability. A private physician, Dr. M.P., in an April 2018 examination and accompanying explanatory report, most recently assessed the Veteran’s right shoulder, providing diagnoses of right clavicle fracture, right rotator cuff tear, right biceps tear and right shoulder arthritis. Concerning in-service injury, the Board resolves all doubt in the Veteran’s favor and finds that the Veteran experienced shoulder injuries in service, to include a right clavicle fracture. Although the Veteran’s STRs do not document treatment for an in-service injury to the Veteran’s shoulder, the evidence of record supplied by the Veteran described below supports a finding that it is at least as likely as not such injury occurred. There are multiple statements from the Veteran describing how he suffered frequent impact injuries to his right shoulder in performance of his regular duties aboard his ship during his most recent period of active duty service. The Veteran’s statements are corroborated by two lay statements from fellow servicemembers who served with the Veteran at the time of claimed injuries. The statements of the Veteran and the additional lay statements indicate that the Veteran was frequently on a small boat in rough seas and would often be forcibly slammed into the sides of other vessels while conducting his duties, which included loading and unloading passengers or seizing narcotics or other contraband, hoisting such aboard. One statement from D.M.S. noted that it was common amongst the rigid hulled inflatable boat crew to suffer shoulder, rib and elbow injuries. D.M.S. indicated that the Veteran was subject to hundreds of collisions, and that he remembers on one occasion, the Veteran was surprised he was able to climb a ladder due to the pain he was experiencing after one such collision. The Veteran’s statements, as well as those of his fellow servicemembers are competent, credible, and probative because they are in line with the nature of the Veteran’s service. The Veteran’s service personnel records confirm service aboard the USS John L. Hall during his most recent period of service as a strike warfare/missile systems officer, and communication officer. Additionally, and pertinently, X-rays taken by a VA examiner in 2006 document evidence of an “old” clavicle fracture that had subsequently healed. The Veteran asserts that the fracture must have occurred during service because there was no serious injury post-service and the Veteran’s employment is primarily sedentary. While the contemporaneous evidence of record does not document an in-service shoulder injury, the other evidence of record, to include the Veteran’s statements, the statements of his fellow servicemembers, and objective medical assessments showing an old clavicle fracture weigh in favor of a finding that an in-service injury occurred. The remaining question is whether the Veteran’s current disabilities are related to his in-service injury, to include a fracture collarbone. There is only one medical opinion of record addressing this relationship. As noted above, the Veteran provided a private medical opinion from Dr. M.P. from April 2018 who assessed the etiology of his claimed right shoulder/collarbone fracture residuals. The examiner opined that it was likely that the Veteran’s current right shoulder disabilities are a result of the Veteran’s claimed in-service collarbone fracture. Dr. M.P. stated in a corresponding assessment that the on-board ship injury which fractured the right clavicle, also caused injuries to the soft tissues and structural elements of the right shoulder. These injuries led to two unsuccessful post-service surgeries. There are no medical opinions of record contrary to that of Dr. M.P. Thus, the evidence of record favors a finding that the Veteran’s right shoulder disabilities are related to injuries sustained during active service, to include a fractured collarbone. The benefit sought on appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel