Citation Nr: 18147408 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-38 200 DATE: November 5, 2018 ORDER New and material evidence having been received, the claim for service connection for a right shoulder condition is reopened, to that extent only the appeal is granted. Service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. In an October 2010 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a right shoulder condition; while the Veteran initially disagreed with this decision, he did not file a timely substantive appeal after an October 2011 statement of the case was issued. 2. Evidence associated with the record since the October 2010 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right shoulder condition. 3. The Veteran’s current right shoulder disability is unrelated to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for a right shoulder condition is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a right shoulder disability have not been satisfied. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to June 1985. This matter is before the Board of Veterans’ Appeals (Board) on an appeal of a December 2013 rating decision. Claim to Reopen If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for a right shoulder condition in an October 2010 rating decision, finding that that there were no in-service right shoulder problems and nothing linking the current right shoulder disability to service. The Veteran disagreed with this decision and VA responded with a statement of the case in October 2011. The Veteran did not file a timely substantive appeal after the statement of the case and as a result the October 2010 rating decision is final. See 38 C.F.R. §§ 20.302, 20.1103 (2011). The evidence received since the October 2010 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, in October 2010 one of the Veteran’s private physicians provided a statement that it is possible that the Veteran’s right shoulder pain is directly related to his military service. This new evidence addresses one of the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened and will be considered on the merits. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In October 2013 a VA examiner diagnosed mild degenerative arthritis of the right shoulder with mild interstitial spur and impingement. Therefore, a current disability is shown and the remaining question is if the disability is related to service. In this case, the Board finds it is not. Service treatment records contain no complaints, treatment, or diagnoses related to a right shoulder disability. During the Veteran’s May 1985 separation examination, evaluation of the upper extremities and musculoskeletal system was normal. It is notable that the Veteran told an October 2010 VA spine examiner that he developed right shoulder problems in the Navy. However, this statement is found to be lacking credibility as it is in conflict with other evidence of record. Post-service, the Veteran reported for a VA general medical examination in August 1997. His only present complaint at that time had to do with asthma. Examination of the musculoskeletal system revealed no diseases or injuries. A right shoulder disability is not shown by medical evidence until around 2010. Notably, the impression after May 2010 VA X-rays was that there was some early arthritis of the right acromioclavicular joint. The Board notes that the arthritis was described as “early” in 2010, some 25 years after the Veteran’s separation from service. Other evidence similarly reflects no right shoulder problems until years after service. For example, the May 2010 X-ray report notes the Veteran’s complaint of right shoulder pain for the past month. During consultation with a private physician in November 2012, the Veteran reported that the shoulder problems had been going on for 4 or 5 years. During the October 2013 VA shoulder examination, the Veteran reported the onset of right shoulder symptoms was in 2008. Given the above, the Board finds the competent and credible evidence of record reflects that the Veteran did not experience problems with his right shoulder until at least 2008. A continuity of right shoulder symptomatology since service is not shown. The evidence is also against a finding that a current right shoulder disability is otherwise related to service. In October 2010, one of the Veteran’s private physicians provided a statement that it is possible that the Veteran’s right shoulder pain is directly related to his military service, including 8 years of sandblasting and pressure washing. The physician noted that this repeated activity could easily have given rise to the significant arthritis that is now present in his shoulder. This statement is afforded no probative weight as it is speculative in nature and does not actually indicate an opinion as to a relationship to service. The Veteran subsequently asked a private orthopedist to address any nexus to service. In November 2012 the orthopedist indicated that he could not specifically relate the Veteran’s current right shoulder impingement syndrome with any service-connected problem. As noted above, during an October 2013 VA examination, the Veteran reported the onset of right shoulder symptoms was in 2008. He noted a gradual onset from sandblasting and painting equipment, and that he reengaged in this work after service from 2000 to 2006. The Veteran believed this post-service work aggravated a preexisting condition that developed during his military service. The examiner opined that the current right shoulder disability was less likely than not related to the Veteran’s time in service. In support of this finding, the examiner noted that there was no documentation of any treatment for a shoulder condition during service or until 2010 and that upon examination at separation there was no mention of a shoulder disability. The examiner found the 25-year gap between service and treatment for a right shoulder disability to be significant. The examiner felt the post-service work from 2000 to 2006 likely impacted the Veteran’s present shoulder condition, as did his chronic tobacco, alcohol and cocaine abuse disorders and previous homelessness. In an October 2018 informal hearing presentation, the Veteran’s representative argued that the October 2013 VA opinion was inadequate as it essentially suggests that the Veteran engaging in the same work he did in the Navy as a civilian post-service is the cause of the disability with no evidence to support this finding. The Board disagrees and finds the opinion highly probative. The examiner’s rationale is based primarily on the fact that the Veteran’s shoulder was normal during service as evidenced by service treatment records and the separation examination report, and that problems with the shoulder did not begin until 20 plus years after service, which also happened to be close in time to the Veteran’s civilian employment. These facts are supported by the record, to include the Veteran’s own statements discussed above. In addition, the examiner notes other nonservice-related factors that could be responsible for the current right shoulder disability. As such, the Board finds the October 2013 VA opinion to not only be adequate, but also to be highly probative. Overall, the preponderance of the credible evidence of record indicates the Veteran developed right shoulder problems decades after his separation from service that are unrelated to any event, injury, or disease during service. Hence, service connection for a right shoulder disability is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ruben D. Rudolph, Jr., Associate Counsel