Citation Nr: 18150844 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-40 753 DATE: November 15, 2018 ORDER The application to reopen the claim of entitlement to service connection for a right shoulder disorder is granted. Entitlement to service connection for a right shoulder disorder is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In an unappealed November 2013 rating decision, the RO denied service connection for a right shoulder disorder. 2. The evidence received since the September 1994 rating decision is relevant to and probative of the issue of entitlement to service connection for an acquired psychiatric disorder. 3. A right shoulder disorder, diagnosed as superior labral anterior-posterior tear and subdeltoid acromial bursitis, is attributable to service. CONCLUSIONS OF LAW 1. The November 2013 rating decision denying the claim for service connection of a right shoulder disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to reopen the claim for service connection for a right shoulder disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). 3. A right shoulder disability was incurred during active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 2009 to May 2012. This matter comes before the Board of Veterans’ Appeals (Board or BVA) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). In this decision, the Board is granting the claim being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).   New and Material Evidence to Reopen Service Connection In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. “New” evidence is defined as 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 United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disorder The RO initially denied service connection for a right shoulder disorder in November 2013. The Veteran did not file a substantive appeal and the decision became final. See 38 U.S.C. § 7105(c). The November 2013 rating decision denied the Veteran’s claim on the basis that there was no evidence that the Veteran was diagnosed with a right shoulder disorder during service. The rating decision noted that the Veteran’s available service treatment records did not show any complaints, treatment, or diagnosis related to a right shoulder disorder; the rating decision found that the evidence does not show an event, disease or injury in service or a current diagnosed right shoulder disability. The rating decision concluded that service connection for a right shoulder disorder could not be granted because there was no evidence of a right shoulder disorder which was incurred in service. Since the denial of the Veteran’s claim for service connection of a right shoulder disorder, the evidence added to the record includes VA treatment records, private treatment records, and a May 2015 VA examination report, as well as statements from the Veteran. The evidence submitted subsequent to the November 2013 rating decision as to the issue of service connection for a right shoulder disorder is new and material. The claim was previously denied on the basis that there was no evidence that the Veteran had a right shoulder disorder related to the Veteran’s service. In essence, at the time of the prior decision, other than the claim, there was no evidence of a right shoulder disorder or an etiological relationship between the Veteran’s claimed right shoulder disorder and his service. The additional evidence speaks directly to an element which was not of record. In this regard, the Board notes that the January and March 2015 VA treatment records reflect a diagnosis of subdeltoid acromial bursitis and a May 2015 VA examination report reflects a diagnosis of superior labral anterior-posterior tear. Likewise, VA treatment records reflect a possible relationship between the Veteran’s service and his right shoulder disorder, however diagnosed; a January 2015 VA treatment record indicates that the Veteran reported a history of right shoulder pain since service. This evidence cures evidentiary defects; namely, the VA treatment records and examination report demonstrate a diagnosis of a right shoulder disorder and VA treatment records reflect that there is a possible relationship between the Veteran’s right shoulder disorder and his service. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that “the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied”). Accordingly, the Board finds that the claim for service connection of a right shoulder disorder is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for a right shoulder disorder The Board finds that the evidence of record demonstrates that service connection for a right shoulder disorder is warranted. The Board acknowledges that the VA examiner found that it was less likely than not that the Veteran’s superior labral anterior-posterior tear is related to his service. However, the Board notes that the May 2015 VA examiner did not address the Veteran’s continued complaints and treatment for right shoulder pain; service treatment records and post-service treatment records reflect a history of chronic right shoulder pain. An October 2011 service treatment record reflects that the Veteran complained of a one-year history of right shoulder pain. In January 2012, he had an MRI of the right shoulder. Post-service treatment records indicate that the Veteran reported a history of continued right shoulder pain and treatment by a private physician since his service. The May 2015 VA examiner’s reliance on the Veteran’s negative MRI in service is insufficient to conclude that the Veteran’s right shoulder disorder did not have onset during service, particularly considering service treatment records reflect that the Veteran had a history of chronic right shoulder pain during service. Moreover, the May 2015 VA examiner’s findings that the Veteran did not have complaints or treatment related to his right shoulder during service is inconsistent with service treatment records reflecting that the Veteran complained of right shoulder pain during service, as well as the fact that he underwent testing to determine the nature of his right shoulder disorder while in service. The Board also notes that the VA examiner’s reliance on the absence of findings upon MRI in January 2012 is not dispositive. To this point, the Board notes that the Veteran consistently complained of right shoulder pain, popping, and crepitus during the two years prior to his separation and in the years following his separation from service. The Board finds the Veteran's report of treatment in service credible and confirmed by the Veteran’s service treatment records. The Veteran is competent to report continuity of symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). In addition, it is reasonable to find that the same in-service symptoms related to the Veteran’s right shoulder pain and discomfort are those symptoms which have been attributed to his superior labral anterior-posterior tear and subdeltoid acromial bursitis, as diagnosed after service. As such, the Veteran’s right shoulder disorder is service-connected. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s right shoulder, diagnosed as superior labral anterior-posterior tear and subdeltoid acromial bursitis, is related to his service. With resolution of any reasonable doubt in the Veteran’s favor, entitlement to service connection for superior labral anterior-posterior tear and subdeltoid acromial bursitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a low back disorder is remanded. The Board notes that the Veteran asserts that he has a low back disorder as a result of his service. Post-service VA treatment records reflect a history of and treatment for low back pain since service and a diagnosis of early facet arthrosis of L5-S1. Private treatment records from Dr. F indicate that MRI showed disc disruption with annular tears and protrusion to the right side at L5-SI, with possible mild sacroiliac joint irritation and/or facet joint irritation with some radicular components; the diagnosis was intervertebral disc disorders with radiculopathy, lumbosacral region, and low back pain. Additionally, VA and private treatment records reflect a history of low back pain since service and reports of in-service onset; statements from the Veteran also report in-service onset. Nevertheless, the Veteran has not yet been afforded VA examinations in connection with the claim for service connection of a low back disorder. Accordingly, the Board finds that the Veteran should be afforded a VA examination regarding the claim for service connection of a low back disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for the disability on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate examination to determine the nature and etiology of any low back disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify all disabilities of the thoracolumbar spine. The examiner should then render an opinion as to each identified disability, including whether it is at least as likely as not (50 percent probability or more) that the identified thoracolumbar spine disability is related to active service. The provider is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and diagnoses and the examiner must take into account, along with the other evidence of record, the Veteran’s statements in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 3. After completing all indicated development, the RO should readjudicate the Veteran’s claim of entitlement to service connection for a low back disorder. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel