Citation Nr: 18151848 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-58 912 DATE: November 20, 2018 ORDER 1. The appeal to reopen a claim of service connection for a right shoulder disability is granted. 2. Entitlement to service connection for drug and alcohol abuse is denied. REMANDED 3. Entitlement to service connection for a left shoulder disability is remanded. 4. Entitlement to service connection for a right shoulder disability (on de novo review) is remanded. FINDINGS OF FACT 1. An unappealed March 1978 rating decision denied the Veteran service connection for a right shoulder disability based essentially on a finding that such disability was not shown. 2. Evidence received since the March 1978 rating decision shows that the Veteran has a right shoulder disability; relates to an unestablished fact necessary to substantiate the claim of service connection for a right shoulder disability; and raises a reasonable possibility of substantiating such claim. 3. The Veteran’s drug and alcohol abuse is not a manifestation of a service-connected disability and, of itself, not a compensable disability. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for a right shoulder disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The claim of service connection for primary drug and alcohol abuse must be denied as lacking legal merit. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.301. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1976 to October 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision. In September 2017 a videoconference hearing was held before the undersigned; a transcript is in the record. 1. The appeal to reopen a claim of service connection for a right shoulder disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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). In determining whether a claim should be reopened, credibility of newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. CAVC interpreted the language of 38 C.F.R. § 3.156(a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). A March 1978 rating decision denied service connection for a right shoulder disability, based essentially on a finding that such disability was not shown or had resolved in service. The Veteran did not appeal that rating decision, or submit new and material evidence within a year following, and it became final. 38 U.S.C. § 7105. Evidence of record at the time of the March 1978 rating decision included service treatment records (STRs) and the Veteran’s lay statements. As the claim was previously denied based on a finding that the claimed disability was not shown, for evidence to be new and material, it must tend to relate to this unestablished fact (tend to show the existence of a current right shoulder disability, and relate it to service). Evidence received since the March 1978 rating decision includes a December 2011 MRI that showed significant osteoarthritis changes of the glenohumeral joint with high-grade chondromalacia, supraspinatus tendinopathy, and partial-thickness undersurface tear of the infraspinatus tendon, and a February 2012 VA shoulder examination that notes a diagnosis of right shoulder rotator cuff syndrome. This evidence is new, as it was not part of the record in March 1978, and is material, as it is competent (medical) evidence that pertains to the unestablished fact necessary to substantiate the claim. Consequently, considering the “low threshold” standard for reopening endorsed by the CAVC in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Board finds that the evidence received is both new and material, and that the claim of service connection for a right shoulder disability may be reopened. De novo consideration of the claim is addressed in the remand below. 2. Service connection for drug and alcohol abuse is denied. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of a veteran’s own willful misconduct or, for claims filed after October 31, 1990 (as here), the result of his or her abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a). Alcohol abuse is the use of alcoholic beverages over time, or excessive use at any one time, sufficient to cause disability to, or death of, the user. Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of the substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered willful misconduct. 38 C.F.R. §§ 3.301(c)(2), (3). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). The law prohibits a grant of direct service connection for (primary) drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263. However, an alcohol or drug abuse disability acquired secondary to, or as a symptom of, a service-connected disability may be service connected. To qualify for such service connection, the alcohol and/or substance abuse must be shown by clear medical evidence, to be secondary to or caused by a service-connected disability, and not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). A July 1977 Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) report notes unsatisfactory participation in counseling by the Veteran. A January 2013 VA treatment record notes that he used marijuana daily from 1972 until 2003 and from 2003 to 2010 was incarcerated on drug-related charges. He reported participation in drug/alcohol treatment since 2010. An April 2016 VA treatment record notes diagnoses of unspecified depressive disorder, alcohol use disorder, cannabis use disorder and stimulant use disorder. At the September 2017 videoconference hearing, the Veteran requested, and was granted, a 60-day abeyance period for submission of additional evidence (that he had an acquired psychiatric disability and that his alcohol abuse resulted from self-medicating for that disability). No additional evidence was submitted. Governing law prohibits service connection for disability due to primary drug and alcohol abuse. See 38 U.S.C. § 1131. The Veteran has not alleged, and the record does not show, that his drug and alcohol abuse are secondary to a service-connected disability. [He has not established service-connection for any disability]. Accordingly, the appeal in this matter must be denied because the claim lacks legal merit. See Sabonis v. Brown; 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Service connection for a left shoulder disability is remanded. On June 2013 VA left shoulder examination, the examiner opined that the Veteran’s left shoulder disability was at least as likely as not incurred in or caused by an in-service injury, event, or illness. She explained that a March 1977 STR showed that the Veteran injured his left shoulder wrestling, and had reported continuing shoulder pain since. It was also noted that his left shoulder was re-injured in the mid-1980’s, and the examiner opined that she could not give an educated opinion (without resort to mere speculation) whether the Veteran’s current left shoulder disability was mainly due to his first injury in service (and aggravated by the second postservice injury), or was mainly due to his second injury. [A July 2013 rating decision denied service connection for a left shoulder disability based on that opinion]. The opinion is inconsistent in that on the one hand the examiner indicates that the left shoulder disability is related to the Veteran’s service, but on the other hand, indicates that an opinion cannot be provided without resort to mere speculation (regarding whether the current left shoulder disability is related to service or was aggravated by a postservice injury). Development for an adequate VA medical opinion regarding the etiology of the left shoulder disability is necessary. 2. Service connection for a right shoulder disability (on de novo review) is remanded. On February 2012 VA right shoulder examination, the examiner opined that the Veteran’s right shoulder disability is less likely than not caused by or related to his injury and treatment during his military service. She explained that there was no medical documentation of right shoulder pain or treatment since the Veteran’s discharge from service. The opinion is inadequate for rating purposes because it does not include sufficient rationale (mere passage of time without treatment is insufficient basis for finding that there is no relationship between a current disability and an injury in service) and does not identify an etiology for the right shoulder disability. Another examination to secure an adequate medical opinion is necessary. The matters are REMANDED for the following: 1. Secure for association with the record all outstanding, up to date, records of VA treatment the Veteran has received for his left and right shoulder disabilities. If any such records are unavailable, the reason for their unavailability must be explained for the record, and the Veteran should be so advised. 2. Then arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his current left and right shoulder disabilities. On review of the record and examination and interview of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each left and right shoulder disability entity found. (b) Identify the likely etiology for each left and right shoulder disability diagnosed. Is it at least as likely as not (a 50% or better probability) that it is etiologically related to/was incurred during the Veteran’s active service? If a shoulder disability is found to have been incurred in service, but to have had pathology superimposed by a postservice injury, so indicate, and if possible distinguish pathology and impairment incurred in service from any superimposed postservice. If it is not possible to make such distinction, explain why that is so. The examiner must include rationale with all opinions, citing to supporting factual data, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel