Citation Nr: 18159370 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-63 649 DATE: December 19, 2018 ORDER New and material evidence having been received, the Veteran’s claim for service connection for a right shoulder condition, also claimed as painful shoulder disorder and right shoulder rotator cuff tear is reopened. Service connection for a left shoulder condition is denied. REMANDED Entitlement to service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. In a June 1978 rating decision, service connection for a right shoulder condition was denied based on the lack of a current right shoulder disability. 2. The evidence added to the record since the June 1978 rating decision is related to an unestablished fact that is necessary to substantiate the claim of service connection for a right shoulder condition. 3. The evidence of record does not indicate that the Veteran currently has, or has ever been treated for, a left shoulder condition. CONCLUSIONS OF LAW 1. The June 1978 rating decision that denied entitlement to service connection is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of service connection for a right shoulder condition are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left shoulder condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to December 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Reopening Service Connection for Right Shoulder Disorder A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or unaddressed new and material evidence is received during the appeal period of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and of the substantive appeal. 38 C.F.R. § 20.204(c). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran is seeking service connection for a right shoulder condition, which he contends was incurred in boot camp. The claim was previously denied in a rating decision dated June 1978 because the Veteran’s examination “was negative for any abnormality.” In other words, the RO found that the Veteran had no current disability. The Veteran did not submit any additional evidence or a notice of disagreement within one year of that rating decision, and therefore, the June 1978 rating decision is final. See 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for a right shoulder condition. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Since the June 1978 rating decision, the evidence demonstrates a rotator cuff tear in the right shoulder, impingement syndrome, and a possible labral tear. Based on the evidence of record, reopening the claim is warranted, as it raises a reasonable possibility of substantiating the Veteran’s right shoulder claim. See 38 C.F.R. § 3.156. Service Connection for Left Shoulder Disorder It appears that the RO construed the Veteran’s claim for painful shoulder disorder as a claim for his left shoulder. After review of the claims file, the medical evidence of record does not demonstrate any complaints of, treatment for, or diagnosis of any left shoulder disorder or condition; there are no complaints of left shoulder pain of record at this time. Additionally, the Veteran has not explicitly claimed entitlement to service connection for a left shoulder disorder other than as part of his October 2016 Notice of Disagreement, when he mentioned a “bilateral” shoulder condition, but proceeded to only discuss his claimed right shoulder condition. Thus, it appears that a left shoulder condition is not being claimed. Accordingly, as there is no evidence of a current left shoulder disability which impairs his earning capacity, to include any complaints of pain of the left shoulder, the Board finds that service connection for a left shoulder condition must be denied at this time based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that “‘disability’ in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.”); McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). REASONS FOR REMAND In the Veteran’s July 1975 enlistment examination, the Veteran was noted to have a right shoulder injury; however, the Veteran did not enter into military service until December 1975, at which time it was noted that the Veteran was fit for service and that there were no additional defects at his entrance into military service. On appeal, the Veteran has contended that he injured his right shoulder during boot camp, and an October 1976 x-ray report indicated that the Veteran had right shoulder pain for 8 to 10 months at that time, placing onset of his right shoulder problems in December 1975 to February 1976 consistent when he would be in boot camp. The Board, however, notes that the Veteran was found not to have a right shoulder disorder in June 1978, and other evidence does not demonstrate any further complaints of a right shoulder problem until 1985. The Agency of Original Jurisdiction (AOJ) in this case noted in the December 2016 statement of the case that the Veteran’s service treatment records did not have a definitive diagnosis of a right shoulder disability on entrance into military service and therefore the presumption of soundness applied in this case. No VA examination has been provided to the Veteran in this case at this time. The Board finds that the low threshold for obtaining a VA examination is warranted in this case and the right shoulder claim is remand for such to be accomplished at this time. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the East Orange VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination in order to determine whether his right shoulder condition is related to military service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should specifically state all right shoulder disorders found, to include a right rotator cuff tear or any arthritic condition thereof. Then, the examiner should indicate whether the Veteran’s right shoulder disorder clearly and unmistakably pre-existed his military service. In so discussing this aspect, the examiner should note the Veteran’s July 1975 enlistment examination which noted a right shoulder injury, as well as the notation that the Veteran was fit for service in December 1975, at the time of his enlistment, without any additional defects noted. If the examiner finds that the Veteran’s right shoulder condition clearly and unmistakably pre-existed entrance into military service, the examiner should then opine whether the Veteran’s right shoulder condition clearly and unmistakably was not aggravated (i.e., permanently worsened) by his military service beyond the normal progression of that disease. The examiner should address the Veteran’s complaints of injury in service in boot camp as well as the treatment for his right shoulder during military service. If the examiner finds evidence of both pre-existence and non-aggravation in this case, the examiner must clearly and specifically indicate the clear and unmistakable evidence of record that lead him or her to that conclusion for both of the above aspects. If the examiner cannot find both clear and unmistakable evidence of both pre-existence and non-aggravation in this case, the examiner must then opine whether the current right shoulder disorder at least as likely as not (50 percent or greater probability) began in or is otherwise related to his miliary service, to include any injury during boot camp. In so discussing this aspect of the case, the examiner should specifically address the Veteran’s lack of any right shoulder disorder on separation from military service as well as the finding of no disability in June 1978. The examiner should additionally address the 1985 evidence of record indicating the first complaint of a right shoulder condition after military service. Moreover, the examiner should consider any of the Veteran’s lay statements regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. Finally, the examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel