Citation Nr: 19150910 Decision Date: 07/01/19 Archive Date: 07/01/19 DOCKET NO. 18-41 529 DATE: July 1, 2019 ORDER The application to reopen the claim of entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder degenerative arthritis, is granted. REMANDED Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder degenerative arthritis, is remanded. FINDINGS OF FACT 1. The September 2015 rating decision determined that service connection for a left shoulder disability was not related to service or caused/aggravated by the service-connected right shoulder degenerative arthritis. 2. Evidence received since the September 2015 rating decision relates to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder degenerative arthritis. CONCLUSIONS OF LAW 1. The September 2015 rating decision is final. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2018). 2. Evidence received since the September 2015 rating decision is new and material and the claim for entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder degenerative arthritis, is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1968 to December 1971, May 1992, and September 2004 to December 2005. The Veteran also served in the Army National Guard. This matter is on appeal from a July 2016 rating decision. Initially, the Board notes that the Veteran originally filed a claim for entitlement to service connection for a “left shoulder condition.” The evidence submitted along with the application reflects diagnoses, including osteoarthritis of the acromioclavicular joint and shoulder impingement syndrome. See July 2016 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ); June 2018 VA Addendum/Clarification DBQ. It is well settled that a claimant does “not file a claim to receive benefits only for a particular diagnosis, but for the affliction his... condition, whatever that is, causes him.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given such, the Board finds it appropriate to recharacterize the Veteran’s claim as a claim for entitlement to service connection for a left shoulder disability. 1. The application to reopen the claim of entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder degenerative arthritis, is granted. The application to reopen the claim of entitlement to service connection for a left shoulder disability is granted. A. Legal Standard Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An 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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bear directly and substantially upon the specific matter under consideration; such 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). B. Analysis and Conclusion Here, in a final September 2015 rating decision, the RO denied the Veteran’s claim for service connection for a left shoulder disability due to finding that the disability was not incurred in or caused by service, or resulted from or was aggravated by a service-connected disability. In May 2016, the Veteran sought to reopen his service connection claim. The evidence received since the September 2015 rating decision includes a June 2018 VA Addendum/Clarification DBQ, in which a VA examiner opined that it is less likely than not the Veteran’s left shoulder is in any way directly related to service or proximately related to his right shoulder condition. The Board finds the evidence new as it was not previously submitted. The evidence is also material as it addresses the previously unestablished fact of nexus. It is not redundant and, in the very least, when considered with the evidence of record, would trigger VA’s duty to assist by providing a medical opinion, which might “raise a reasonable possibility of substantiating the claim.” See Shade, 24 Vet. App. at 110. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder degenerative arthritis, is remanded. With respect to his current left shoulder disability, the Veteran has claimed that he hurt his left shoulder in service at the same time he hurt his right shoulder, which has been service-connected for a right shoulder disability. See May 2019 Appellate Brief. He has also claimed that his current left shoulder disability is secondary to his service-connected right shoulder disability. Id. A negative VA etiology addendum opinion was obtained in June 2018. See June 2018 Addendum/Clarification Disability Benefits Questionnaire (DBQ). The Board finds the opinion inadequate inasmuch as the examiner improperly based the etiology opinions, most ostensibly for the direct service connection opinion, solely on the lack of in-service documentation of any in-service injury or treatment records relevant to the claim. See id. (“[As] to the direct service connection claim], there is no mention of a left shoulder condition in service.”); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an “absolute bar” to service connection). Based on the foregoing, an addendum opinion must be obtained addressing the foregoing concern. The matter is REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the June 2018 addendum opinion and, if available, obtain another addendum opinion regarding the Veteran’s left shoulder disability direct and secondary service connection claim. If the original examiner is not available, forward the claims file to an appropriate examiner to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should provide an addendum opinion addressing: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disability is caused by his service-connected right shoulder disability, and b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disability is aggravated by his service-connected right shoulder disability. For this question, the examiner is advised that aggravation means the service-connected disability caused an increase in the severity of an existing nonservice-connected disability beyond the natural progression of the disease. If aggravation is found, the examiner must attempt to establish the baseline level of severity of the left shoulder disability prior to aggravation by the service-connected right shoulder disability. The examiner(s) is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. Any missing evidence that would enable the examiner to provide the opinion should also be identified. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) For all opinions, the RO should ensure that a rationale is provided, to include specific discussion of the medical principles involved and the relevant facts. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.