Citation Nr: 18129596 Decision Date: 08/27/18 Archive Date: 08/27/18 DOCKET NO. 13-34 178A DATE: August 27, 2018 ORDER The petition to reopen the claim of service connection for a right shoulder disorder is denied. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for alcohol abuse is remanded. FINDINGS OF FACT 1. In an unappealed October 2008 decision, the RO declined to reopen the Veteran’s previously denied claim of entitlement to service connection for a right shoulder disorder. 2. Evidence received since the October 2008 rating decision does not raise a reasonable possibility of substantiating the claim of service connection for a right shoulder disorder. CONCLUSIONS OF LAW 1. The October 2008 rating decision that declined to reopen the claim of service connection for a right shoulder disorder is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2018). 2. New and material evidence was not received, and the claim of entitlement to service connection for a right shoulder disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The right shoulder, left shoulder, back, and alcohol abuse issues were remanded in July 2015 to afford the Veteran a Board hearing. In a separate decision, the Board remanded the issue of the correct sum for disbursement of agent fees for issuance of a statement of the case (SOC). Prior to issuance of an SOC, an award of fees totaling $18,494.91, the full amount sought in his notice of disagreement, was made to the Veteran’s representative. See January 2016 SHARE Print Screens. In August 2017, the Veteran withdrew his hearing request. As such, no further development is pending. On October 31, 2014, following certification of the right shoulder, left shoulder, and back issues to the Board, the Veteran’s representative submitted correspondence requesting to withdraw from representation. Because the withdrawal request was received after certification of these issues, the representative must make a motion to the Board demonstrating good cause to withdraw from representation. See 38 C.F.R. § 20.608(b). The representative did not specify any reason for his withdrawal and therefore did not comply with the provisions of 38 C.F.R. § 20.608(b). Accordingly, his withdrawal of representation is not valid. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an October 2008 rating decision, the RO declined to reopen the Veteran’s previously denied claim of service connection for a right shoulder disorder due to absence of evidence of a nexus to service. The Veteran did not appeal that decision, nor did he submit new and material evidence within a year of receiving it. The decision therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In June 2011, the Veteran filed a petition to reopen his claim of service connection for a right shoulder disorder. The evidence added to the record since the October 2008 rating decision includes medical treatment records showing continued treatment for right shoulder pain and lay statements asserting a right shoulder disability related to service. Although the aforementioned evidence is new, it does not raise a reasonable possibility of substantiating the Veteran’s claim. The medical evidence does not establish a nexus to service, and the lay evidence is cumulative, as it merely repeats assertions made prior to the October 2008 decision. There remains no competent evidence of a nexus between a right shoulder disability and service. As such, there is no indication that the newly obtained evidence could, if the claim was reopened, reasonably result in substantiation of the service connection claim. The claim is not reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder is remanded. The Veteran asserts that he has a left shoulder disorder related to an in-service injury. See August 2011 NOD. Medical records show complaints of left shoulder pain and notation of mild narrowing on X-ray, but no diagnosis of a current disability. See May 2013 CAPRI Records. Nonetheless, the Veteran’s reported pain may constitute a current disability if it results in functional impairment. As such, he should be afforded a VA examination. 2. Entitlement to service connection for a back disorder is remanded. The Veteran asserts that he has a back disorder related to an in-service injury. See August 2011 NOD. Medical records show treatment for a current diagnosis of lumbar disc disease. See May 2013 CAPRI Records. The Veteran reports experiencing continuous symptomology since service. As there is evidence of a current disability, an in-service injury, and an indication that the two may be related, the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). 3. Entitlement to service connection for alcohol abuse is remanded. The Veteran asserts that his diagnosed alcohol abuse is secondary to his service-connected PTSD. See May 2010 Correspondence. An opinion was obtained in June 2011 addressing secondary service connection. However, the opinion merely addresses whether alcohol abuse is “related” to PTSD without specifying whether causation or aggravation is being addressed. As such, a new opinion should be obtained. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any left shoulder or back disorder. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: a. Please identify all disabilities of the left shoulder found to be present or that have existed during the appeal period. In doing so, the examiner MUST discuss whether the Veteran has functional impairment of the left shoulder. b. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any left shoulder disability had its onset in service or within a year of service discharge or is otherwise etiologically related to active service. c. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any back disability had its onset in service or within a year of service discharge or is otherwise etiologically related to active service. Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 2. Return the file to the examiner who completed the June 2011 opinion addressing service connection for alcohol abuse. If the examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s alcohol abuse was caused or aggravated (worsened) by his service-connected PTSD? Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. After all development has been completed, the AOJ should adjudicate the aforementioned issues based on the evidence of record. If any aspect of the appeal remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel