Citation Nr: 18156798 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 17-02 480 DATE: December 11, 2018 ORDER VA has received new and material evidence to reopen a claim of service connection for a respiratory disorder. To this extent only, the appeal is granted. Entitlement to service connection for a left shoulder disorder is granted. REMANDED Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. VA denied the Veteran’s claim for a respiratory disorder in May 2009. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of this decision. Therefore, the decision became final. 2. The Veteran filed a claim for service connection for a respiratory disorder in January 2012. He submitted new and material evidence with this claim. 3. Service caused the Veteran's left shoulder disorder. CONCLUSIONS OF LAW 1. The May 2009 rating decision denying the claim for service connection for a respiratory disorder is final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence since that decision has been submitted to allow the reopening of the respiratory disorder claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for direct service connection for a left shoulder disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to March 1981, February 2003 to July 2003, and from January 2008 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA). The undersigned notes that the Veteran did not request a Board hearing in his December 2016 VA Form 9. However, he submitted a statement in August 2017 which suggested that he might want a hearing. Therefore, Board staff clarified, via a December 4, 2018 telephone call that the Veteran did not desire a Board hearing. Board staff recorded this in a December 4, 2018 Report of General Information. Issue 1: Whether VA has received new and material evidence to reopen a claim of entitlement to service connection for a respiratory disorder. New and Material Evidence VA denied the Veteran’s claim for a respiratory disorder in May 2009. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of this decision. Therefore, the decision became final. Under 38 U.S.C. § 7104(b), the Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence, 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). At the time of the May 2009 denial, the record consisted of service treatment records and private medical records. Subsequently, VA received VA treatment records. This evidence was new. This evidence, which shows VA has diagnosed the Veteran with chronic obstructive pulmonary disorder (COPD) and fatigue, was also material because it helps substantiate his claim, and it relates to a reason VA previously denied his claim. Reopening of the Veteran’s the claim for service connection for a respiratory disorder based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). Issue 2: Entitlement to service connection for a left shoulder disorder Direct Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Left Shoulder Disorder A VA radiologist, coincident with an April 2013 VA compensation examination, diagnosed the Veteran with "superior subluxation of the clavicle with respect to the acromion that is most likely secondary to acromioclavicular joint separation." This satisfies the first prong of direct service connection. In May 2003, the Veteran injured his left acromioclavicular joint, as recorded in his service treatment records. He received a three-week temporary profile for this injury. This satisfies the second prong of direct service connection. The appeal turns on the third prong of a direct service connection claim – medical nexus. The April 2013 examiner opined that there was no nexus to service because there were "no STRs documenting treatment for shoulder condition." The undersigned does not understand how the examiner missed the record cited above. Notwithstanding this, the radiologist has supplied the required nexus, especially as there is no indication that the Veteran had another acromioclavicular joint injury after May 2003. Therefore, the Veteran satisfies the third prong of direct service connection. The Veteran has met all three prongs of a direct service connection claim. Therefore, the Board will grant the appeal. REASONS FOR REMAND Remand is warranted for two reasons. First, the October 2016 Statement of the Case cites VA treatment records from the Amarillo facility from August 2009 to August 2013 that do not appear in the claims file. VA should attempt to obtain these on remand. Second, the April 2013 VA examiner reported that the Veteran did not then have, or ever have, a respiratory disorder. VA treatment records after the examination show VA is treating the Veteran for COPD and fatigue. A new examination is warranted to determine if these conditions are related to the Veteran's in-service complaint of shortness of breath in January 2009. The matter is REMANDED for the following action: 1. Attempt to obtain all of the Veteran's VA treatment records from the Amarillo facility from August 2009 to present. The undersigned is aware that some of these records are already in the claims file, but there are gaps. To facilitate ease of review, upload these records in a single electronic file into VBMS. 2. Schedule the Veteran for a compensation examination to determine the nature and etiology of his respiratory disorder. The examiner should review this Remand and answer the following question: (Continued on the next page)   Is it at least as likely as not (50 percent probability) that the Veteran's respiratory disorder, to include COPD and fatigue, was incurred in or has its etiology in service? Why or why not? In answering this question, expressly address the relationship, if any, between the respiratory disorder and the Veteran’s in-service complaint of shortness of breath in January 2009. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel