Citation Nr: 18159735 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-01 499 DATE: December 20, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disability, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. A March 2006 rating decision denied service connection for a left shoulder disability; the Veteran did not timely appeal this denial, and no new and material evidence was submitted within the one year appeal period following the issuance of that decision. 2. Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left shoulder disability. CONCLUSIONS OF LAW 1. The March 2006 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for a left shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from February 2002 to February 2006. The Veteran initially requested a videoconference hearing before the Board in his Substantive Appeal (VA Form 9); however, in an April 2016 statement he indicated he no longer wished to appear at a hearing. Accordingly, the Board finds his request is withdrawn. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disability Generally, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105. An 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance, because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the Court has also held that the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996). Factual Background and Analysis Entitlement to service connection for a left shoulder disability was denied in a March 2006 unappealed rating decision. The claim was denied because the evidence failed to show a current disability and a nexus between the Veteran’s claimed left shoulder disability and his active duty service. The Veteran did not file any statement indicating disagreement with the March 2006 decision or submit any additional new and material evidence within the appeal period. In April 2013, the Veteran filed a petition to reopen his claim for service connection for a left shoulder disability. In a February 2014 rating decision, and again in a November 2014 Statement of the Case, the Agency of Original Jurisdiction (AOJ) determined no new and material evidence had been submitted and declined to reopen the claim. The relevant evidence of record at the time of the March 2006 rating decision included the Veteran’s service treatment records, claim for compensation benefits, and a pre-discharge VA examination. This evidence did not demonstrate a currently diagnosed disability. Evidence added to the record subsequent to the March 2006 rating decision consists of, in pertinent part, an August 2015 private medical opinion which indicated that the doctor treated the Veteran for a dislocated left shoulder in 2013, and that the Veteran’s current left shoulder disability was related to his active duty service. The Board finds this evidence is new because it was not before adjudicators at the time of the March 2006 rating decision and also finds that the evidence is material because it raises a reasonable possibility of substantiating the Veteran’s claim as it supports elements of service connection that were missing at the time of the March 2006 rating decision. Accordingly, the Veteran’s petition to reopen his claim for entitlement to service connection for a left shoulder disability is allowed, and to that extent only, it is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. Although the Board regrets the further delay, a remand is required for additional development and adjudicative action. The Veteran was afforded a December 2005 VA pre-discharge examination. The examiner diagnosed status post left shoulder strain, resolved, and did not provide a medical opinion. Notably, the Veteran did not appear for a VA examination which had been scheduled for July 2014. The record reflects that he contacted VA several times throughout the years indicating that had moved around that time, that he never received the letter informing him of the examination, and that he wished to appear at a new examination. The Board recognizes that the record contains a private August 2015 medical opinion which found a relationship between the Veteran’s left shoulder disability and his active duty service. However, this opinion was based solely on an examination and a history of the Veteran’s symptomatology as described by the Veteran to the examiner. The examiner did not have access to the Veteran’s complete claims file and did not have a complete picture of all the available evidence. While the Board finds this August 2015 opinion is not fully adequate evidence in support the Veteran’s claim for service connection, it does trigger VA’s duty to assist the Veteran by providing him with an examination and obtaining a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the foregoing, the Board finds a new examination and opinion is warranted. Additionally, the Board notes that the record contains a May 2014 Report of General Contact which details a conversation between the Veteran and a VA employee. The Veteran informed the VA employee that he testified against a Sergeant during service and that he wanted these documents to be included in his records, as they would prove that he was precluded from seeking medical treatment during service. The Veteran indicated he would attempt to obtain the Court Martial documents against the Sergeant he testified against; however, the record does not contain any of these documents. In 2017, VA revised General Counsel Precedential Opinion (VAOGCPREC) 05-2014 which addresses questions concerning the application of VA’s duty to assist in circumstances where a claimant asserts that records in another servicemember’s VA or Department of Defense file would be relevant to the claimant’s benefit claim. The revised opinion indicates that when a claimant (“Veteran A”) asserts that records from another veteran (“Veteran B”) are potentially relevant to Veteran A’s claim, there is not an absolute requirement that VA must ask Veteran B to authorize VA to disclose his or her records to Veteran A for purposes of Veteran A’s claims. Rather, the opinion indicates that VA must make a case-by-case determination as to whether asking Veteran B to authorize disclosure of his or her records would be within the scope of VA’s “reasonable efforts” to assist Veteran A. In determining whether “reasonable efforts” include such a request in a particular case, VA may consider factors including the third party’s privacy interest in his or her records; the likelihood that the records exist; the likelihood that the request would result in consent to disclose the records to the claimant; and the potential for such requests to generate conflict or otherwise adversely affect the safety, health, or rights of either the claimant or the third party. A determination that “reasonable efforts” do not require seeking a third-party’s consent to disclose his or her records to the claimant would be most strongly justified in a case where the interests of the third party are adverse to the claimant’s interest, such as where the claimant alleges that the third party assaulted the claimant or engaged in other improper or unlawful behavior. In contrast, where the interests of the claimant and the third party are not adverse, there ordinarily would be a stronger basis for a finding that VA’s “reasonable efforts” may include asking the third party to consent to disclosure of his or her records to the claimant. In the instant case, it appears the Veteran is asking for the records of a Sergeant he testified against; but he could be asking VA to obtain the records from another servicemember which include his testimony about this particular Sergeant. Accordingly, the Board finds that on remand the AOJ must contact the Veteran to request additional information regarding the records he would like VA to attempt to obtain on his behalf. The Veteran is informed that his cooperation is crucial. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thereafter, if the AOJ finds that reasonable efforts to comply with its duty to assist requirement would include attempting to obtain these records, they must do so. See VAOGCPREC 05-2014. (CONTINUED ON NEXT PAGE) The matter is REMANDED for the following action: 1. Contact the Veteran and request that he provide information regarding the Court Martial documents and testimony he would like the AOJ to attempt to obtain on his behalf, to include the particular servicemember’s file he is requesting that the AOJ obtain and his relationship with that servicemember. The Veteran is informed his cooperation is crucial. 2. Following completion of step 1, if and only if the AOJ believes that asking the identified servicemember to authorize disclosure of his or her records would be within the scope of VA’s “reasonable efforts” under its duty to assist requirement, then then efforts to obtain these records must be made. See VAOPGRPREC 5-2014. 3. Following completion of steps 1 and 2, afford the Veteran the appropriate VA examination to determine the etiology of his left shoulder disability. A full history from the Veteran must be obtained regarding the onset and continuity of symptomatology and must be recorded in the examination report. Following a complete review of the medical and lay evidence of record, the examiner is requested to provide the following opinion: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s currently diagnosed left shoulder disability began during or is etiologically related to his active duty service. A complete rationale for this opinion must be provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must explain why this is so. 4. The AOJ must review this examination report to ensure it is adequate. If deficient in any manner, corrective action must be taken at once. 5. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. (CONTINUED ON NEXT PAGE) 6. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel