Citation Nr: 18122575 Decision Date: 07/31/18 Archive Date: 07/31/18 DOCKET NO. 14-40 510 DATE: July 31, 2018 ORDER The request to reopen the claim for service connection for a right shoulder disability is granted. The request to reopen the claim for service connection for a left shoulder strain disability is granted. The request to reopen the claim for a bilateral elbow disability is granted. REMANDED Entitlement to service connection for right shoulder degenerative joint disease (DJD), is remanded. Entitlement to service connection for left shoulder strain, is remanded. Entitlement to service connection for bilateral elbow DJD, is remanded. FINDINGS OF FACT 1. A June 1996 rating decision denied service connection for joint pains, to include in the shoulders and elbows. 2. Evidence associated with the claim file since the 1996 denial is relevant and probative. CONCLUSIONS OF LAW 1. The June 1996 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the June 1996 rating decision is new and material; and, the claim for service connection for right shoulder DJD, left shoulder strain, and bilateral elbow DJD is reopened. 38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. §§ 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to June 1991, during the Gulf War Era. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran was scheduled for a Board hearing. A January 2018 email correspondence shows that the Veteran, and his representative, requested that his hearing be canceled. The claim file does not contain any letters documenting a request to reschedule the hearing. Accordingly, the Veteran’s hearing request is withdrawn. In a September 2013 rating decision, the RO reopened the Veteran’s claim of service connection for joint pain condition, to include the shoulders, elbows and knees, and decided the issues on the merits, but the question of whether new and material evidence has been received to reopen such issues must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it 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). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issues on appeal accordingly. New and Material 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right shoulder disability 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left shoulder disability. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a bilateral elbow disability. In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2002); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “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). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156 (a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran was denied service connection for joint pain, to include shoulders and elbows in a June 1996 rating decision. The basis of the decision was that there was no current disability for joint pain, to include in the shoulders and elbows. The Veteran was informed of the decision but he did not appeal and new and material evidence was not received within a year of the decision. As such the decision is final. 38 U.S.C. § 7105. The evidence previously considered that pertains to the issues on appeal includes service treatment records, and a March 1996 VA examination. Since the June 1996 rating decision, the Veteran was provided a VA examination in August 2014 documenting a diagnosis of right shoulder DJD, left shoulder strain, and bilateral elbow DJD. The Board finds that this evidence pertains to the unestablished fact of the Veteran’s current disability of bilateral shoulder and bilateral elbow conditions. It therefore raises a reasonable possibility of substantiating the Veteran’s claim and cures an evidentiary defect which existed at the time of the prior denial. Therefore, the claim of service connection for joint pain, to include in the shoulders and elbows is reopened and will be addressed further in the remand section. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder DJD, left shoulder strain. 2. Entitlement to service connection for left shoulder strain is remanded. 3. Entitlement to service connection for bilateral elbow DJD is remanded. The Veteran asserts that he is entitled to service connection for right shoulder DJD, left shoulder strain, and bilateral elbow DJD. He contends that he has experienced joint pains in his shoulders and elbows since his period of active duty service in Iraq and Saudi Arabia during the Persian Gulf War. As noted above, an August 2014 VA examiner diagnosed the Veteran with right shoulder DJD, left shoulder strain, and bilateral elbow DJD. The examiner stated that there are no treatment records listing any shoulder or elbow problems in service. The examiner opined that these disabilities are more likely related to the Veteran’s last 23 years working in corrections and law enforcement restraining inmates and criminal suspects rather than the few months he was activated in 1991. However, the Board’s review indicates that the March 1991 redeployment examination contained in the Veteran’s service treatment records shows a report of swollen or painful joints. Further, the record included a note regarding the left shoulder stating that it “pops and cracks when in motion and sometimes becomes painful or sore after heavy exertion.” See also June 2014 deferred rating decision. Additionally, the Veteran stated in his September 1995 claim for benefits that his joint pain began in February 1991. Pursuant to this claim, the Veteran was afforded a March 1996 VA examination in which he stated that he has had joint pains in his elbows and shoulders for the prior 3 years. It appears the examiner did not consider the service treatment records or the Veteran’s credible statements reflecting report of continuing symptoms of joint pain in his shoulders and elbows since service. Therefore, the Board finds that the Veteran should be scheduled for a new VA examination regarding the etiology of the Veteran’s shoulder and elbow disabilities that accurately considers all the evidence of record. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any joint disability, to include the right shoulder DJD, left shoulder strain, and bilateral elbow DJD. The claim file must be made available to the examiner for their review and the examination report must state that a review of the file was completed. All necessary tests and studies should be conducted. After an examination of the Veteran and with consideration of the reported history, the examiner must opine as to: whether it is at least as likely as not that any diagnosed disability of the bilateral shoulders and elbows, to include DJD of the right shoulder and bilateral elbows and left shoulder strain, is related to an in-service injury, event, or disease, including the Veteran’s service in Iraq and Saudi Arabia during the Gulf War. A complete rationale for all opinions rendered must be provided. In issuing the opinion, the examiner must consider the Veteran’s competent statements of inception and continuity of symptoms. 2. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. M. Harris, Associate Counsel