Citation Nr: 18160239 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-02 016 DATE: December 26, 2018 ORDER New and material evidence having been received, the claim to reopen service connection for the left shoulder and cervical spine disabilities is granted. REMANDED Service connection for a left shoulder disability and cervical spine disability, to include as secondary to service connected lumbar disability is remanded. FINDINGS OF FACT 1. In June 2011, the Board issued a final decision denying the Veteran service connection for his left shoulder and cervical spine disabilities. 2. Evidence submitted since a June 2011 Board decision is new and material and raises a reasonable possibility of substantiating the service-connected claim for the Veteran’s left shoulder and cervical spine disabilities. CONCLUSIONS OF LAW 1. The June 2011 Board decision that denied service connection for the Veteran’s left shoulder and cervical spine disabilities is final. 38 U.S.C. § 7105(c) (2017); 38 C.F.R. §§ 21.1001, 20.1100 (2017). 2. The criteria to re-open service connection for the Veteran’s left shoulder and cervical spine disabilities, to include as secondary to service connected lumbar disability, has been met. 38 U.S.C. §§ 5108, 7103, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1953 to August 1955 in the United States Army. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affair (VA) Regional Office (RO) in Guaynabo, Puerto Rico. In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). Order to Re-Open Claims Based on New and Material Evidence for the Veteran’s Left Shoulder and Cervical Spine Disabilities A Board decision is final unless the Chairman of the Board orders reconsideration. 38 U.S.C. §§ 7103 (a), 7104 (2017); 38 C.F.R. § 20.1100 (a) (2017). 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. 38 U.S.C. § 5108 (2017). Under 38 C.F.R. § 3.156 (a) (2017), evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is evidence which, 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. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary’s duty to assist by providing a medical opinion. For the purpose of determining whether a case should be re-opened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In reviewing the new evidence, duplicate copies of records previously considered are not “new” evidence. As they have been previously considered, they do not add to the evidentiary picture. In this case, the June 2011 Board Decision denied service connection for the Veteran’s left shoulder and cervical spine disabilities on a direct basis after finding no in-service injury or onset during service. The Board also found that current disabilities of the shoulder and cervical spine were not secondary to service-connected disability. The Veteran did not appeal the final decision or file a motion for reconsideration pursuant to 38 C.F.R. § 20.1001 (2017), and therefore, the decision became final as to his two claims. 38 C.F.R § 20.1100 (2017). In particular, in the June 2011 decision, the Board reviewed the Veteran’s service treatment records (STRs), VA examinations, private medical examinations, statements in his Notice of Disagreement (NOD), and VA medical reports and found no evidence of in-service injuries to the Veteran’s shoulders or cervical spine and therefore his disabilities could not service connected. The Board stated that although the Veteran made ongoing complaints of neck and shoulder pain during service, it was not until 1967 and 1972 that he provided medical evidence of his disabilities. The Board determined that no medical evidence existed to link the cervical spine disability and shoulder disability to his time in service. Furthermore, in a December 2008 VA medical examination, the examiner opined that his disabilities could not be secondary to his service connected lumbar spine disability because his cervical spine and shoulders were two distinct anatomical areas, not related in terms of biomechanics, to his lumbar spine disability. Since the June 2011 Board Decision, evidence added to the record includes duplicate medical records, lay statements, an August 2015 private examination and opinion, a December 2015 VA examination, and an August 2018 Board hearing. At the August 2018 Board hearing, the Veteran asserted that he began to experience pain in his left shoulder and cervical spine since his fall from a truck while in service. Here, the Veteran’s statements made during the hearing are new and material because he had not made any prior statements addressing the theory of direct service connection; namely testimony describing injuries to his left shoulder and cervical spine in service and descriptions of pain since an in-service injury. Therefore, after presuming the credibility of such, his statements raise a reasonable possibility of substantiating his claims. More significantly, in an August 2015 private medical examination, a physician opined that his degenerative arthritis disease not only contributed to the development of chronic pain on his joints but also to his cervical and lumbar spine which caused the radiculitis and paresthesias. This medical opinion is also new and material. As such, the criteria to reopen the claims has been met. Unfortunately, additional development is required. That development is set forth in the Remand section below. REMANDED ISSUES In Allen v. Brown, the Court stated that medical evidence must be established to determine whether the current disability was aggravated by the service-connected disability. 7 Vet. App. 439 (1995). In this case, the December 2015 medical opinion provided by the VA examiner is inadequate because the examiner did not address whether the Veteran’s cervical spine disability was aggravated by his service-connected lumbar spine disability. Furthermore, the Veteran asserted during an August 2018 Board hearing that he had been experiencing pain in his left shoulder and neck since service, but there is no medical opinion evidence addressing whether his left shoulder disability is secondary to service-connected disability. The August 2015 private medical opinion, while supportive of the claim, does not provide a rationale for the opinion reached. Thus, the Board is unable to determine why that examiner believes there is a relationship between the current shoulder and cervical spine disabilities and the Veteran’s service-connected low back disability. As such, additional medical opinion is required. The matters are REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. The most recent private treatment records are dated from August 2015. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 2. Upon receipt of the Veteran’s current medical records, schedule the Veteran for VA examinations to address his left shoulder disability and cervical spine disability. The examiner must review the claim file and must note that review in the report. After review of all relevant evidence, the examiner must provide an opinion as to whether the Veteran’s left shoulder and cervical spine disabilities are (a) proximately due to or (b) aggravated by the Veteran’s service-connected lumbar spine disability. Explain why or why not. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Doaw Xiong