Citation Nr: 18159775 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-00 411 DATE: December 20, 2018 ORDER 1. The appeal to reopen a claim of service connection for a right shoulder disability is granted. 2. Service connection for an umbilical hernia with abdominal cramps is granted. REMANDED 3. Entitlement to service connection for right shoulder disability is remanded. FINDINGS OF FACT 1. An unappealed November 2010 rating decision denied the Veteran service connection for a right shoulder disability, finding that such disability was not shown. 2. Evidence received since the November 2010 rating decision shows that Veteran has a diagnosis of 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. It is reasonably shown that the Veteran’s umbilical hernia with abdominal cramps and pain became manifest in service and has persisted since. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for right shoulder disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Service connection for umbilical hernia with abdominal cramps and pain is warranted. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1985 to December 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a December 2015 Department of Veterans Affairs (VA) rating decision. 1. Whether new and material evidence has been received to reopen a claim of service connection for a right shoulder disability. A November 2010 rating decision denied the Veteran service connection for a right shoulder disability, finding that such disability was not shown. The Veteran was informed of, and did not appeal, that decision or submit new and material evidence within the following year. 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 received. 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). When determining whether the claim should be reopened, the credibility of the 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. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, for evidence to relate to an unestablished fact necessary to substantiate the claim, and be considered new and material, it would have to be evidence received since the prior final rating decision and tend to show that the Veteran has a diagnosed right shoulder condition. Evidence added to the record since November 2010 includes an April 2015 private orthopedic report wherein the provider notes a decreased range of motion and palpatory tenderness in the Veteran’s right shoulder. Such evidence of a current disability pertains to a previously unestablished fact and is new, warranting reopening of the claim. 2. Service connection for an umbilical hernia with abdominal cramps and pain is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active peacetime service. See 38 U.S.C. § 1131, 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When a claimed disability is not noted upon entry into service, the Veteran is presumed to have been in sound condition with respect to such disability on entry in service. Such presumption is rebuttable only by clear and unmistakable evidence that (1) the condition preexisted service and (2) if rebutted, that it was not aggravated by such service (did not increase in severity during service, or any increase in severity during service was due to natural progression). 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.306. The presumption of soundness attaches when an entrance examination report is lost or missing. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). The Veteran’s early service treatment records (STRs) (including his service entrance examination report) are missing and could not be found. VA conducted an exhaustive search for the missing records and has determined they are unavailable. See December 6, 2011 memo regarding “Formal Finding of Unavailability” (documenting VA’s efforts to locate the Veteran’s STRs and concluding they are unavailable and all efforts having been exhausted with further attempts deemed futile). Accordingly, the Veteran is entitled to a presumption of soundness on entry in service with respect to an umbilical hernia. Doran, 6 Vet. App. at 286. The Veteran’s STRs contain multiple notations beginning in November 1986, regarding complaints of abdominal pain and a protruding umbilicus (November 1986, December 1986, March 1987, April 1987, and July 1987). In December 1986, an umbilical hernia was noted as a major problem and the Veteran was scheduled for a surgical consultation. On March 1987 surgical consultation, he reported lower abdominal cramps and muscular pain after physical activity (since high school) and a change in his bowel habit. An umbilical hernia was noted, and inflammatory bowel disease (IBD) was to be ruled out. The physician could not determine if the umbilical hernia was symptomatic or not. The next day, the Veteran requested a profile because the area around hernia was uncomfortable during physical training. On a second surgical consultation on July 1987, he reported a self-limiting discomfort in his mid-abdomen region that occurred daily; the impression was chronic abdominal pain. In November 1986 to July 1987 it was noted that the Veteran reported he has had the umbilical hernia and abdominal pain for many years. On November 1987 “chapter” examination, the Veteran’s abdomen and viscera (including hernia) were marked normal; and he indicated in a report of medical history that he had not had stomach or intestinal trouble and was in good health. In August 2010, the Veteran’s wife related that he suffered from severe stomach pain from his hernia following separation from service. On September 2015 VA hernia examination, the Veteran reported he started complaining of an umbilical hernia (that he had since childhood) in service and had a several year history of stomach cramps. It was noted that the hernia is painless, easily reducible, and is aggravated with bending, lifting, and twisting. On physical examination, the umbilical hernia was small, nontender, and easily reducible, and his abdomen was nontender with no palpable masses. The examiner opined the hernia is less likely than not related to service. The examiner reviewed the Veteran’s STRs and noted that the hernia “clearly” predated military service. The examiner also opined that the Veteran’s abdominal cramps are less likely than not related to his hernia or his service, explaining they clearly predated service (but did not explain how it was shown that they predated service or why they were not related to his hernia). On a November 2015 VA examination, it was noted that the hernia was still present and reducible; the examined opined there was no evidence of aggravation since the evidence showed that the hernia had not required treatment, surgery, or medicine and had been stable. The examiner also opined it is plausible that the abdominal cramps and pain are secondary to the umbilical hernia (as a symptom of the hernia and not a separate condition), noting that the umbilical hernia was noted each time he was seen in service for abdominal pain and that IBD was ruled out as 2012 colonoscopy showed no evidence of IBD and medical records from 1987 to the present made no mention of IBD. The examiner opined that abdominal pain clearly preexisted service, as there were many notes stating that the abdominal pain has existed many years prior to service. The examiner opined that service did not aggravate the abdominal pain as it was present on and off during service, did not require surgery or extensive treatment during service, and the Veteran denied any gastrointestinal issues or pain on his November 1987 Chapter examination. In December 2015, the Veteran stated that the umbilical hernia has gotten worse. It is not in dispute that the Veteran has an umbilical hernia. It was noted in service and found on VA examinations. The evidence is also at least in equipoise that he continues to experience abdominal cramps and pain. A November 2015 VA examiner determined that the Veteran’s abdominal cramps and pain were a symptom of his hernia and not a separate disability. As this is a medical question, the examiner’s opinion, drawn on medical training, is highly probative evidence in the matter. The Board finds the November 2015 examination opinion more probative on this point than the September 2015 opinion (which lacked adequate rationale). It is also not in dispute that the Veteran was treated for his umbilical hernia/abdominal pain in service. What remains to be determined is whether there is a nexus between the current disability and active service. The Board acknowledges that the Veteran stated in service he had a hernia and abdominal issues prior to service, raising the issue of whether he had a preexisting condition. However, his service entry records are missing and he is entitled to a presumption of soundness on entry in service with respect to the umbilical hernia. While the September 2015 VA examiner opined that the Veteran’s umbilical hernia and abdominal cramps “clearly” predated his service, this finding appears to be premised on the Veteran’s statements during service (that he has had the condition for many years). Supporting medical evidence is needed to establish a preexisting condition. Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Notably, the file does not contain any competent medical evidence to that effect. The September 2015 VA opinion and the Veteran’s reports of childhood problems to service examiners are not clear and unmistakable evidence that he had an umbilical hernia on entry in service and are insufficient to rebut the presumption of soundness on entry in service as to an umbilical hernia with abdominal pain. While he denied having had any gastrointestinal issues or pain on his separation from service, the record shows he was seen at least five times during service for issues relating to his umbilical hernia and abdominal pain. Rather than showing by clear and unmistakable evidence that a preexisting umbilical hernia disability did not increase in severity during service, the record reasonably shows that an umbilical hernia (and related abdominal cramps and pain) became manifest in service and have persisted since (as the Veteran’s wife has stated; the Board finds no reason to question her reports). Resolving remaining reasonable doubt regarding the etiology of the claimed umbilical hernia disability in the Veteran’s favor (as required under 38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that service connection for umbilical hernia with associated abdominal pain is warranted. REASONS FOR REMAND Entitlement to service connection for right shoulder disability. The Veteran alleges he has a right shoulder disability that is due to a right acromioclavicular (AC) joint sprain in service. His STRs show that he fell on his right shoulder during service and a right AC joint strain was diagnosed. On November 2017 VA shoulder and arm examination, the examiner stated the Veteran’s claimed current right shoulder pain can be attributed to adhesive capsulitis (based on the Veteran’s history, physical, and radiographic exam). The examiner opined this current diagnosis is less likely than not caused by his AC joint sprain in-service and noted adhesive capsulitis is multifactoral in nature. The examiner did not explain why a right shoulder sprain in service would not be one of the “multi-factors” for the current adhesive capsulitis and the opinion is inadequate for rating purposes. Another medical advisory opinion that includes a full explanation of rationale is necessary. March 2017 VA treatment records indicate the Veteran right shoulder pain has been attributed to rheumatoid arthritis (there is no opinion regarding the etiology of the rheumatoid arthritis). The matter is REMANDED for the following: Arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his right shoulder disability. On review of the record (including the Veteran’s 2017 VA treatment records) and examination of the Veteran (including diagnosis studies indicated), the examiner: (a) Identify (by diagnosis) each right shoulder disability found/shown by the record. (b) Identify the likely etiology for each right shoulder disability entity diagnosed. Is it at least as likely as not (a 50% or greater probability) that it is related to (was first manifested in, or is etiologically related to) his active duty service, to include a right shoulder sprain therein? The examiner should include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Associate Counsel