Citation Nr: 18148526 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-43 660 DATE: November 7, 2018 ORDER The claim of entitlement to service connection a right shoulder disability is reopened. The claim of entitlement to service connection for a low back disability is reopened. The claim of entitlement to service connection for a left knee disability is reopened. REMANDED The claim of entitlement to service connection for a right shoulder disability, claimed as mild acromioclavicular and glenohumeral degenerative changes, is remanded. The claim of entitlement to service connection for a low back disability, claimed as lumbosacral mild multilevel degenerative lumbar spondylosis, is remanded. The claim of entitlement to service connection for a left knee disability, claimed as left knee strain with lateral patellar tracking is remanded. The claim of entitlement to service connection for bicipital tendonitis of the left shoulder is remanded. FINDINGS OF FACT 1. Claims for service connection for a right shoulder disability and for a low back disability were initially denied in a March 2011 rating decision; a claim for service connection for a left knee disability was initially denied in April 2011. Each claim was denied on the basis that the evidence did not indicate that the Veteran’s claimed conditions were related to his active service. The Veteran did not appeal these decisions, nor did he submit new and material evidence within a year of their denials. 2. Claims for service connection for a low back disability and a left knee disability were subsequently denied in May 2014 on the basis that no new and material evidence had been submitted to reopen these claims. The Veteran did not appeal that decision, nor did he submit new and material evidence within a year of it. 3. Evidence received since the March 2011, April 2011, and May 2014 rating decisions speaks to the reasons for the previous final denials and warrants reopening the Veteran’s claims for service connection. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The criteria to reopen the claim of entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1974 to September 1993, including almost 5 years of foreign service. New and material evidence has been received to reopen the previously denied claims of entitlement to service connection for a right shoulder disability, for a low back disability, and for a left knee disability A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. The prior denial of service connection for his right shoulder claim became final, as did the prior denial of service connection for a lumbar spine disability and the left knee disability. These denials became final because the Veteran did not initiate an appeal of the RO’s March 2011, April 2011, or November 2014 rating decisions within one year, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claims may now 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). Regarding the request to reopen the right shoulder condition claim, new evidence since the March 2011 rating decision includes a variety of treatment notes subsequently associated with the record that record a variety of treatments, diagnoses, and complaints pertaining to the right shoulder. See, e.g., August 2012 Private Treatment Record, noting possible impingement syndrome; October 2013 Private Treatment Record, noting superficial thrombophlebitis versus bicep tendonitis. The VA must construe a claim for service connection for a “right shoulder condition” broadly. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, all conditions potentially causing the complained of symptoms should be considered, and the treatment records pertaining to shoulder condition other than mild acromioclavicular and glenohumeral degenerative changes may be clinically significant. The November 2010 VA examination did not address these potential diagnoses of record, and only discussed a 1987 visit during active service for a right shoulder problem. Though this new evidence does not speak directly to the reason for the previous denial (namely, the lack of a nexus between his current disability and service), the new evidence, along with the Veteran’s contentions regarding his claims, triggers the need for a new examination. As such, reopening of the right shoulder claim is warranted. 38 C.F.R. § 3.156(a). Regarding the request to reopen the lumbar spine claim, after the November 2014 rating decision, there were numerous private and VA treatment records added to the record concerning the Veteran’s lumbar spine condition. See, e.g., June 2016 VA treatment note, indicating Veteran had a discectomy and stabilization at L4 L5; July 2014 Private Treatment note, indicating the Veteran had severe back pain and was in need of lumbar laminectomy, scheduled for July 2014. These entries may add clarity as to the nature and severity of the Veteran’s current lumbar spine condition, which may warrant a revised etiology opinion. Affording the benefit of doubt to the Veteran, the new evidence is considered to have a reasonable possibility of substantiating the claim, and as such, reopening of the lumbar spine claim is warranted. 38 C.F.R. § 3.156(a) Regarding the request to reopen the left knee claim, after the November 2014 rating decision, there were several treatment records associated with the claim. A October 2015 Private Treatment record notes left knee diagnoses of patellofemoral syndrome not addressed in the November 2010 VA examination or the March 2011 Addendum. The new diagnosis is potentially material because the VA examiner distinguished the previously diagnosed conditions from various conditions noted in service. This new diagnosis may relate to a number of service treatment record entries, including the October 1981 Orthopedic Assessment of bilateral knee pain. The new evidence is considered to have a reasonable possibility of substantiating the claim, and as such, reopening of the left knee claim is warranted. 38 C.F.R. § 3.156(a) REASONS FOR REMAND 1., 2., 3. Entitlement to service connection for a right shoulder disability, for a low back disability, and a left knee disability are remanded. As noted above, these claims have been reopened. These claims warrant additional development before they can be adjudicated by the Board. First, as the RO did not adjudicate these claims on the merits prior to this point (finding instead that new and material evidence had not been submitted), this fact alone requires a remand to afford the Veteran due process. Further, the Veteran did not undergo VA examinations germane to any of these claims following his attempts to reopen. Though he did undergo examinations at the time of his initial claim, those examinations are inadequate. Notably, since the time of those examinations, the Veteran has had additional right shoulder, low back, and left knee disabilities diagnosed. Additionally, the opinions offered in conjunction with those earlier claims were inadequate, as they based their findings on the lack of recorded treatment from the time of the Veteran’s retirement to the filing of his claims without discussion of the Veteran’s lay statements or of his particular diagnosed disabilities. New examinations are required. 4. Entitlement to service connection for bicipital tendonitis of the left shoulder is remanded. The Veteran seeks service connection for a left shoulder condition. The Veteran was afforded a VA examination of this condition in March 2016. In this examination, the VA examiner provided a medical nexus opinion that is unclear and somewhat ambiguous. Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). As such, remand for clarification is warranted. Additionally, there are new medical notes pertaining to the Veteran’s left shoulder condition associated with the file that should be reviewed by the VA examiner. The claim is accordingly remanded to the Agency of Original Jurisdiction (AOJ) for an addendum opinion that notes review of the updated file and a restated medical nexus opinion, or a new VA examination addressing the nature and the etiology of the Veteran’s current left shoulder disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the question of whether the Veteran’s current left arm and shoulder disability is related to his active service. If the reviewing examiner determines that the opinion requested cannot be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. Regardless of whether an examination is performed, after reviewing the claims file and performing any other development necessary, the examiner is to state whether it is at least as likely as not that any identified left shoulder disability had its onset during or is otherwise related to the Veteran’s active service. 2. Schedule the Veteran for an appropriate examination to determine whether any identified right shoulder disability is related to his active service. After reviewing the claims file and performing all indicated tests, the examiner is to state whether it is at least as likely as not that any identified right shoulder disability had its onset during or is otherwise related to the Veteran’s active service. 3. Schedule the Veteran for an appropriate examination to determine whether any identified low back disability is related to his active service. After reviewing the claims file and performing all indicated tests, the examiner is to state whether it is at least as likely as not that any identified low back disability had its onset during or is otherwise related to the Veteran’s active service. 4. Schedule the Veteran for an appropriate examination to determine whether any identified left knee disability is related to his active service. After reviewing the claims file and performing all indicated tests, the examiner is to state whether it is at least as likely as not that any identified left knee disability had its onset during or is otherwise related to the Veteran’s active service. 5. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issues on appeal. The case should be returned to the Board for further appellate consideration, if in order, for further review. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel