Citation Nr: 18161264 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-03 823 DATE: December 31, 2018 ORDER The petition to reopen the previously denied claim for service connection for back disability is granted. . REMANDED Entitlement to service connection for back disability is remanded. Entitlement to an evaluation in excess of 20 percent for right shoulder disability is remanded. FINDING OF FACT An unappealed May 2014 rating decision denied service connection for back disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The May 2014 rating decision denying the claim for service connection for back disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1994 to December 1994. These matters come before the Board of Veterans’ appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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 regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, 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). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for back disability. The Board concludes that a May 2014 rating decision denying the claim for service connection for back disorder is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. A May 2014 rating decision of the VA Regional Office (RO) denied the claim of entitlement to service connection for back disability because a current back disability was not shown. The RO notified the Veteran of this decision in a May 2014 letter. VA did not receive an appeal of this decision or new and material evidence prior to expiration of the appeal period. Therefore, the May 2014 rating decision became final. Evidentiary submissions received since the May 2014 rating decision include medical evidence showing levoscoliosis of the thoracolumbar spine per a June 2016 VA examination report. The evidence is new as is was not before adjudicators at the time of the prior denial; it is material because it pertains to a basis for the prior denial. Also, the recent evidence cures a prior evidentiary defect. Therefore, new and material evidence has been received. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND 2 Entitlement to service connection for back disability. To ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c). The Veteran contends that he has a back condition caused or aggravated by, his service-connected right shoulder disorder. Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). Service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service treatment records (STRs) reflect no findings for abnormal pathology of the spine. An August 1993 service entrance examination reflects normal spine except under defects “lordosis” was noted. A June 1994 service separation examination reflects normal clinical evaluation of the spine. The first documented back complaints are shown on the Veteran’s May 2013 VA claim for benefits, wherein he reported that his back disorder began in 1995—after active service. A June 2016 VA examination reflects a diagnosis for minimal thoracic levoscoliosis. The VA examiner opined that it is less likely than not due to, or aggravated beyond its natural progress, by the Veteran’s right shoulder impingement. The examiner explained, “The preponderance of medical evidence and expertise does not support a causal relationship between shoulder impingement syndrome/shoulder surgery and scoliosis.” She said there is no medical nexus between shoulder impingement/shoulder surgery and scoliosis. The examiner did not address whether there was aggravation. Because the Veteran seeks service connection on a secondary basis and because the June 2016 VA examination does not address whether any currently shown back disorder is aggravated by the Veteran’s right shoulder disability, the Board finds that the VA medical opinion of record is inadequate to decide the matter. Therefore, remand is required. 3. Entitlement to an evaluation in excess of 20 percent for right shoulder disability. While the record contains a 2016 VA examination regarding the Veteran’s right shoulder disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain address passive range of motion and pain on weight-bearing testing. Therefor remand is necessary. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current back disorder is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected right shoulder disability. The examiner should provide a detailed explanation to address the Veteran’s theory that his back is either caused or aggravated by his right shoulder problems. 2. Schedule the Veteran for an examination of the current severity of his right shoulder disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right shoulder disability alone and discuss the effect of the Veteran’s right shoulder on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Mucklow, Associate Counsel