Citation Nr: 18153332 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-55 013 DATE: November 27, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a right shoulder condition is granted. REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for cervical degenerative disc disease (DDD) is remanded. FINDINGS OF FACT 1. In a March 1993 rating decision, the Regional Office (RO) denied service connection for right shoulder pain. The Veteran did not perfect her appeal within the prescribed time limit and, therefore, the decision became final. 2. Evidence received since the March 1993 rating decision relates to previously unestablished elements of the claim for service connection for a right shoulder condition and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1993 rating decision that denied service connection for a right shoulder condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302 (2017). 2. New and material evidence sufficient to reopen the claim for service connection for a right shoulder condition has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether new and material evidence sufficient to reopen a claim for service connection for a right shoulder condition has been received This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision that reopened the Veteran’s claim for service connection for a right shoulder condition but denied it on the merits. Although the RO reopened the claim, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett, 83 F.3d 1383-84. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review it. 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 the 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 prior final denial of the claim, and it 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 new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the new evidence relates specifically to the reason why the claim was last denied. Instead, it should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. In August 1992, the Veteran filed a claim for service connection for a right shoulder condition that was denied in a March 1993 rating decision. The RO reasoned that any injury during service resolved without further residuals and the Veteran’s bone scan and x-rays showed a normal spine and shoulder. The Veteran did not file a Notice of Disagreement. The evidence available at the time of the decision consisted only of the Veteran’s service treatment records. In March 2011, the Veteran filed a petition to reopen her claim for service connection for a right shoulder condition. Evidence received since the prior final decision includes a March 2013 VA examination indicating that the Veteran is diagnosed with an acute right shoulder contusion and right shoulder impingement syndrome. It also includes an April 2017 written statement by the Veteran explaining that, following service, she did not go to the doctor unless her pain was intolerable and she tended to self-treat her pain. In addition, there is a post-service treatment record that appears to attribute the Veteran’s trouble “raising arms at [the] shoulder” to a tank accident in service. This evidence is new, as it was not received by the RO in March 1993 when the prior final decision was rendered. Presumed credible, this evidence indicates that the Veteran currently suffers from a right shoulder condition that may have been incurred in or caused by service. Thus, it at least triggers VA’s duty to assist the Veteran develop her claim. For these reasons, the Board finds that new and material evidence sufficient to reopen the Veteran’s claim has been received, and the claim is reopened. See 38 C.F.R. § 3.156. The Board finds, however, that a remand for additional development is necessary prior to rendering a decision on this matter. REASONS FOR REMAND Entitlement to service connection for a right shoulder condition is remanded. Although the Board sincerely regrets the additional delay, a remand is required for additional development. VA’s duty to assist includes obtaining a medical examination when it is necessary to decide a claim. See 38 U.S.C. § 5103A(d). When VA undertakes to provide an examination, it must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, a medical opinion is probative if it considers all the relevant facts and contains fully articulated, sound reasoning. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). It is not adequate if it contains an incomplete analysis. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran’s March 2013 VA examination is inadequate to decide the claim because it provides insufficient reasoning for its conclusion and it fails to address key facts. The examiner found that the Veteran’s acute right shoulder contusion and right shoulder impingement syndrome were not related to service because the Veteran was treated during service only for a right shoulder contusion and there was no documentation of chronic shoulder pain. Curiously, he attributed the Veteran’s present condition to chronic degenerative changes due to aging, even though the Veteran is not currently diagnosed with degenerative changes in her shoulder. In addition, in finding no link between the Veteran’s conditions and her service, the examiner failed to address a November 1988 service treatment note indicating that the Veteran felt the “sensation of something pinching” in her shoulder. He also did not address post-service treatment records from 1991, indicating that the Veteran complained of “a history of shoulder pain” and “recurrent shoulder soreness” that she attributed to her tank accident in service. Although the Veteran’s private medical records contain a treatment note that appears to attribute the Veteran’s difficulty moving her shoulder to the tank accident in service, it does not contain a nexus opinion discussing this apparent link in any detail. Bloom v. West, 12 Vet. App. 185, 187 (1999). For this reason, it does not provide a medical nexus sufficient to decide the claim. Based on the foregoing, the Board finds that a new examination is warranted to better assess whether the Veteran’s current right shoulder condition was incurred in or otherwise caused by service. Entitlement to service connection for cervical DDD is remanded. For the same reasons cited above, a remand is also warranted regarding the Veteran’s claim for service connection for cervical DDD. As stated, the probative value of a medical opinion comes from its reasoning and whether it provides sufficient rationale or analysis to decide a claim. Nieves-Rodriquez, 22 Vet. App. 295; Stefl, 21 Vet. App. 120. The Veteran underwent a VA examination for her cervical spine in March 2013 at which she was diagnosed with cervical DDD. In finding that her condition was not related to service, the examiner concluded only that “it is more likely than not her current cervical spine condition is due to chronic degenerative changes associated with aging.” In providing this sparse rationale, the examiner did not address the Veteran’s in-service complaints of upper back pain, including pain in her right scapula and right arm following her tank accident. He also did not consider the Veteran’s assertions, in her recent written statements, that she chose to self-treat her back pain over the years, that her condition has been ongoing since service, and that she reported to her doctors that her injuries resulted from her tank accident during service. Thus, a new examination is warranted to fully examine the Veteran’s condition in light of this additional evidence and to provide a full rationale for all opinions rendered. In light of the remand, the Veteran should be provided an opportunity to submit additional evidence and updated treatment records. In this regard, the Board notes that the Veteran intended to a submit a written statement from a fellow serviceman that witnessed the tank accident in question, but no such statement has been received. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any records regarding her right shoulder condition and her cervical DDD that she wishes to have associated with the claims file. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s right shoulder condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the tank accident that took place in July 1988. The examiner is asked to specifically consider the Veteran’s competent lay statements explaining that her right shoulder pain has been ongoing since service and that she tended to self-treat her right shoulder pain after discharge from service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s cervical DDD. The examiner is asked to opine whether this condition at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner is asked to specifically consider the Veteran’s competent lay statements explaining that her upper back pain has been ongoing since service and that she tended to self-treat her upper back pain since discharge from service. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel