Citation Nr: 18160808 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 14-39 185 DATE: December 27, 2018 ORDER New and material evidence not having been received, the claim of service connection for a right shoulder disorder is denied. New and material evidence not having been received, the claim of service connection for a thoracic spine disorder is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. FINDING OF FACT 1. A September 1998 RO decision denied the Veteran’s claim of entitlement to service connection for a right shoulder disability. 2. Evidence received subsequent to the September 1998 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a right shoulder disorder. 3. A September 1998 RO decision denied the Veteran’s claim of entitlement to service connection for a thoracic spine disorder. 4. Evidence received subsequent to the September 1998 RO decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a thoracic spine disorder. CONCLUSION OF LAW 1. New and material evidence has not been received since the September 1998 rating decision which denied service connection for a right shoulder disorder; the claim of service connection for a right shoulder disorder is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2018). 2. New and material evidence has not been received since the September 1998 rating decision which denied service connection for a thoracic spine disorder; the claim of service connection for a thoracic spine disorder is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1994 to May 1998. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 1. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). Right Shoulder The Veteran asserts that he has a right shoulder disability related to service. In a September 1998 rating decision, the RO denied service connection for a right shoulder disability. The Veteran did not appeal the September 1998 decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. In February 2013, the Veteran filed to reopen the claim for service connection for a right shoulder disorder. In January 2014, the RO continued to deny the Veteran’s claim for service connection for a right shoulder disability. The Veteran filed a Notice of Disagreement in August 2014. In an October 2014 Statement of the Case, the RO explained that the claim would not be reopened as the evidence received was not new or material to the claim. The evidence of record at the time of the RO’s September 1998 decision included service treatment records which showed that the Veteran’s entrance examination, dated May 1994, was normal for upper extremities and that his separation examination report, dated April 6, 1998, showed that he complained of a trick right shoulder for the past 4 years, with o abnormality noted. As for the post-service medical evidence, a VA examination report in August 1998, reflects that the Veteran reported he was playing softball while he was stationed in Germany and he threw a ball from the outfield over hand and hurt his shoulder. The examiner diagnosed a “history of right shoulder tendonitis, none found at today’s exam.” In September 1998, the RO denied the claim. The RO determined that there was insufficient evidence to establish that the Veteran had a chronic condition of the right shoulder that was incurred in or was aggravated by military service or that one was manifested to a compensable degree within the prescribed presumptive period. The most recent final denial of this claim was in September 1998. Therefore, the Board must determine if new and material evidence has been received since that time. See 38 U.S.C. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The medical evidence received since the RO’s September 1998 rating decision includes VA and non-VA records. This evidence includes a June 2018 VA exam report. The examiner did not diagnose the Veteran with any right shoulder disorder. The examiner opined that the Veteran’s right shoulder disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that upon examination there was no showing of pain, tenderness, swelling or decreased range of motion to suggest a chronic condition or connection to any service related event. Most of this evidence, which was not of record at the time of the September 1998 decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. However, this evidence is not material. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to the appellant is not new and material). The received evidence does not include any additional evidence of a right shoulder disorder diagnosis. The Board therefore finds that the submitted evidence is not new and material, and that it does not raise a reasonable possibility of substantiating the claim. The claim is therefore not reopened. Thoracic Spine The Veteran asserts that he has a disability of the thoracic spine related to service. In a September 1998 rating decision, the RO denied service connection for a disability of the thoracic spine. The Veteran did not appeal the September 1998 decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In February 2013, the Veteran filed to reopen the claim for service connection for a disability of the thoracic spine. In January 2014, the RO continued to deny the Veteran’s claim for service connection for a disability of the thoracic spine. The Veteran filed a Notice of Disagreement in August 2014. In an October 2014 Statement of the Case, the RO explained that the claim would not be reopened as the evidence received was not new or material to the claim. The evidence of record at the time of the RO’s September 1998 decision included service treatment records which showed that the Veteran’s entrance examination, dated May 1994, was normal for evaluation of the spine, other musculoskeletal and that his separation examination report, dated April 6, 1998, showed that he complained of a recurrent back pain for the past 2 years, without abnormality noted. As for the post-service medical evidence, a VA examination report in August 1998, showed that the Veteran reported that he was lifting and pulling equipment, when the muscle on the right side of the shoulder started hurting. The Veteran noted that he never received any medical care for his back because he was stationed in Germany. The examiner diagnosed a history of lumbosacral strain and noted that there was no disease found on current examination. In September 1998, the RO denied the claim. The RO determined that there was insufficient evidence to establish that the Veteran had a chronic condition of the thoracic spine that was incurred in or was aggravated by military service or that one was manifested to a compensable degree within the prescribed presumptive period. The most recent and final denial of this claim was in September 1998. Therefore, the Board must determine if new and material evidence has been received since that time. See 38 U.S.C. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The medical evidence received since the RO’s September 1998 rating decision includes VA and non-VA records. This evidence includes a June 2018 VA exam report. The examiner did not diagnose the Veteran with any disability of the thoracic spine. The examiner opined that the Veteran’s disability of the thoracic spine was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that upon examination there was no showing of pain, tenderness, swelling or decreased range of motion to suggest a chronic condition or connection to any service related event. Most of this evidence, which was not of record at the time of the September 1998 decision, is not cumulative, and is “new” within the meaning of 38 C.F.R. § 3.156. However, this evidence is not material. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to the appellant is not new and material). The received evidence does not include any additional evidence of a diagnosis of a disability of the thoracic spine. The Board therefore finds that the submitted evidence is not new and material, and that it does not raise a reasonable possibility of substantiating the claim. The claim is therefore not reopened. REASONS FOR REMAND Entitlement to service connection for a right knee disorder is remanded. The Veteran is seeking service connection for a right knee disorder. The Board notes that the Veteran sought treatment for right knee pain on numerous occasions and was diagnosed with a Baker’s cyst on his right knee. The in-service treatment records, however, are absent of any complaints, treatment, or diagnosis of any right knee disability. Nevertheless, the Veteran stated in his original claim that his right knee disability started during service. See February 2013 Statement in Support of Claim. The Board finds that the Veteran has not been afforded a VA examination for the purposes of obtaining a nexus opinion, and based on his competent lay contention that his right knee disability started in service, one should be conducted. The duty to assist includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Copies of updated relevant treatment records should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for a VA examination with an appropriate clinician to identify any current right knee disorder and determine the date of onset thereof. The VA examiner should determine whether it is at least as likely as not (50 percent or greater probability) that any current right knee disorder is of service onset or otherwise etiologically related to the Veteran’s period of active service. The rationale for any opinions expressed should be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide a reason why speculation would be required by explaining the basis for such an opinion, basing the opinion on sufficient facts or data, and clearly identifying precisely what facts cannot be determined. When formulating an opinion, the examiner must consider and address the Veteran’s lay statements regarding his symptomatology, the service treatment records, and all relevant post-service treatment records. A complete rationale must be provided for all opinions offered. The claims file should be provided to the examiner for review in conjunction with the examination and such review should be acknowledged. All appropriate testing (CONTINUED ON NEXT PAGE) should be accomplished. All findings and conclusions should be set forth in a legible report. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel