Citation Nr: 18151724 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-53 487 DATE: November 20, 2018 ORDER The application to reopen a claim for entitlement to service connection for a left shoulder disorder is granted. Entitlement to service connection for a left shoulder disorder is denied. FINDING OF FACT 1. In an unappealed January 2008 rating decision the Department of Veterans Affairs (VA) denied the Veteran’s claim of entitlement to service connection for a left shoulder disorder. 2. Evidence associated with the record since the January 2008 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left shoulder disorder. 3. The preponderance of the evidence is against a finding that a left shoulder disorder is in any way related to service. CONCLUSIONS OF LAW 1. The January 2008 rating decision, which denied reopening a claim for entitlement to service connection for a left shoulder disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for a left shoulder disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Left shoulder tendonitis was not incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 2001 to October 2005. A review of the record discloses that this is not the Veteran’s first claim of entitlement to service connection for a left shoulder disorder. That claim was initially denied in an August 2006 rating decision. That rating decision acknowledged that the Veteran had had a shoulder sprain in service but that it had resulted in no chronic, identifiable residual disability. The Veteran was notified of that decision, as well as her appellate rights. However, she did not file a notice of disagreement with which to initiate an appeal. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In August 2007, the Veteran filed an application to reopen her claim of service connection for a left shoulder disability. The RO denied the Veteran’s application to reopen the claim in a January 2008 rating decision. Again, the Veteran did not file a notice of disagreement with which to initial an appeal. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510 (1992). New evidence means existing evidence not previously submitted to VA decisionmakers. 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. Evidence added to the record since the January 2008 rating decision includes a November 2015 VA examination report which included a diagnosis of left shoulder tendonitis. When considered with the evidence previously of record, it raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left shoulder disorder. In short, the additional evidence is new and material and, therefore, sufficient to reopen the claim. To that extent, the appeal is granted. Since new and material evidence has been presented, the Board may proceed to evaluate the merits of the claim. The Veteran asserts service connection is warranted for a left shoulder disorder incurred during a fall in active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left shoulder tendonitis, and evidence shows that an in-service injury occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left shoulder tendonitis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Although the Veteran initially complained of left shoulder pain in April 2007, VA treatment records show the Veteran was not diagnosed with left shoulder tendonitis until November 2015, 10 years after her separation from service. While the Veteran is competent to report having experienced symptoms of left shoulder pain consistently since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of left shoulder tendonitis. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the November 2015 VA examiner opined that the Veteran’s left shoulder tendonitis is not at least as likely as not related to an in-service injury, event, or disease, including an in-service fall. The rationale was that the Veteran’s shoulder disorder was due to her post-service occupation and deconditioning. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board recognizes that an April 2007 VA practitioner reported a diagnosis of degenerative joint disease, a chronic disability. However, there are no diagnostic tests from that time to confirm the diagnosis. The x-ray report of the November 2015 VA examination specifically found no acute findings. As such, the Board finds the diagnosis of degenerative joint disease is not supported by the record. In view of the foregoing, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit-of-doubt doctrine is not for application. 38 U.S.C. § 5107(b). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel