Citation Nr: 20004622 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-00 753 DATE: January 21, 2020 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for a right shoulder disability is granted. REMANDED 1. Service connection for a right shoulder disability is remanded. 2. Entitlement to a compensable disability rating for the service-connected status post umbilical hernia repair is remanded. FINDINGS OF FACT 1. An unappealed October 2013 rating decision denied service connection for a right shoulder disability, and new and material evidence was not received within one year of that decision. 2. The evidence associated with the file since the October 2013 rating decision includes evidence that relates to unestablished facts necessary to substantiate the right shoulder claim, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim for service connection for this disability. CONCLUSIONS OF LAW 1. The October 2013 rating decision that denied service connection for a right shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The evidence received since the October 2013 rating decision is new and material evidence and serves to reopen the Veteran’s claim for service connection for a right shoulder disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from August 1974 to August 1978. During the current appeal and specifically in November 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. New and Material Evidence—Right Shoulder Disability A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the Regional Office (RO) ruled on the question of reopening, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, 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 (Fed. Cir. 2000). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board should be cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, in the October 2013 rating decision, the RO denied service connection for a right shoulder disability, as there was no evidence of current right shoulder disability that was etiologically related to the Veteran’s active service. The Veteran did not perfect an appeal as to this adverse determination, nor did he submit new and material evidence within a year following the decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the October 2013 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the October 2013 rating decision includes VA treatment records and radiology reports. The December 2017 radiology report indicates that the Veteran has a current right shoulder diagnosis. X-ray reports show that the Veteran has right acromioclavicular joint arthritis. VA treatment records dated in December 2017 reflect the severity of the Veteran’s shoulder pain with a score of seven out of ten and indicate that he has limited use of his right shoulder. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for the Veteran’s right shoulder disability, as it provides evidence of a current disability. Thus, the claim for service connection for a right shoulder disability is reopened. REASONS FOR REMAND Service connection for a right shoulder disability After review of the record, the Board regrettably finds that a remand for further development is warranted. The Veteran asserts that he has a right shoulder disability that is directly related to his active duty. Specifically, he contends that he injured his right shoulder in a motor vehicle accident that occurred in 1976 while in service. Records of medical treatment that he received at Maxwell Air Force Base have not been obtained relating to the accident. The Veteran stated at the November 2019 hearing before the undersigned VLJ that these medical records show the treatment that he received following the accident. A remand is necessary to accord the agency of original jurisdiction an opportunity to attempt to obtain any such available records. Further, a December 2017 radiology report shows that the Veteran has a current diagnosis of right acromioclavicular joint arthritis. Despite this diagnosis, however, the Veteran has not been afforded a VA examination for his right shoulder disability. The Board finds that the evidence of record is sufficient to trigger VA’s duty to assist in providing the Veteran with a VA examination to determine whether his right shoulder disability is etiologically related to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Compensable rating for service-connected status post umbilical hernia repair The Veteran seeks a compensable rating for status post umbilical hernia repair. The last instance in which the Veteran was afforded a VA examination for this disability is dated in September 2015. At that time, the examiner found that there is no disability, that the ventral hernia had healed, and that there is no indication of a supporting belt. Following the September 2015 VA examination, the RO issued an October 2015 rating decision which continued the Veteran’s rating at 0 percent. Importantly, since that most recent examination, the record appears to show a worsening of this condition. Specifically, at the November 2019 hearing, the Veteran reported that his hernia repair is causing him pain, that he is currently taking four different medications for his hernia repair, and that he is being treated at a VA facility for his hernia repair (with his last appointment being in September 2019). As the Veteran’s report of relevant symptomology suggests a worsening of the severity of this disability since his last VA examination in September 2015, the Board finds that a new examination should be scheduled in order to ascertain the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, a remand is required to afford the Veteran a VA examination to determine the current severity of the Veteran’s umbilical hernia condition. These matters are REMANDED for the following action: 1. Obtain any available previously unobtained VA medical records reflecting right shoulder and umbilical hernia repair treatment. 2. Attempt to obtain any medical treatment records from Maxwell Air Force Base in 1976, based on the Veteran’s statement that he received treatment at that location after he sustained a right shoulder injury in a motor vehicle accident. Document all requests for information as well as all responses in the claims file. 3. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his right shoulder disability. The claims file must be made available to the examiner in conjunction with this examination. Any testing deemed necessary should be conducted. After review of the claims folder, as well as an interview with and examination of the Veteran, the examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s right shoulder disability onset in his service or is otherwise the result of an incident in service. In other words, is the diagnosed right shoulder disability consistent with the Veteran’s purported in-service 1976 motor vehicle accident? In rendering this opinion, the examiner should consider the lay statements of record regarding the nature and onset of the symptoms. The examiner is advised that the Veteran is competent to report symptoms and treatment. Also, the mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. All opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 4. Also, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected status post umbilical hernia repair. The claims file must be made available to the examiner in conjunction with this examination. Any testing deemed necessary should be conducted. After a review of the claims folder, as well as an interview with and examination of the Veteran, the examiner should describe all symptoms and functional impairment associated with the Veteran’s umbilical hernia. Specifically, the examiner should address the size of the Veteran’s umbilical hernia and any need for a supporting belt. A detailed explanation (rationale) is required for all opinions provided. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination, if requested, may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional (CONTINUED ON NEXT PAGE) evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Dourmashkin, Law Clerk 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.