Citation Nr: 20005158 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 17-31 941 DATE: January 24, 2020 ORDER New and material evidence has been received, and the claim for service connection for a left shoulder disability is reopened. Entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to a compensable rating for residuals of a thumb fracture is remanded. Entitlement to a compensable rating for residuals of a wound to the right testicle is remanded. Entitlement to a rating in excess of 20 percent for scars due to gunshot wounds is remanded. Entitlement to service connection for disabilities of the little finger, right finger, and knuckles of the right hand is remanded. FINDINGS OF FACT 1. In a July 2010 rating decision, the Regional Office (RO) denied service connection for a left shoulder disability. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 2. Additional evidence has been received since the July 2010 rating decision that relates to an unestablished fact that is necessary to substantiate the claim for service connection for a left shoulder disability. 3. Resolving all reasonable doubt in the Veteran’s favor, he has a left shoulder disability that is related to service. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied service connection for a left shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for a left shoulder disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1998 to September 1999, and from August 2004 to May 2006, and from August 2006 to August 2009. This claim arose to the Board of Veterans’ Appeals (Board) from April 2013 and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a December 2019 hearing. A transcript of that hearing is associated with the record. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a left shoulder disability The Veteran seeks entitlement to service connection for a left shoulder disability. Implicit in this claim is the contention that new and material evidence has been received which is sufficient to reopen a previously disallowed claim for this benefit. 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 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 C.F.R. § 3.156(a). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran filed a claim for service connection for a left shoulder disability which was denied in a July 2010 rating decision. The claim was denied on grounds that the VA examiner determined there was no diagnosed left shoulder disability and there were no complaints of left shoulder pain found in the Veteran’s service treatment records. The Veteran was notified but did not appeal the decision. Accordingly, the July 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Subsequently, the Veteran filed the instant application to reopen his claim. As part and parcel of that application, the Veteran testified, at length, at his Board hearing explaining his current inability to use his left shoulder and how it affects his daily life. Furthermore, the Veteran credibly testified to the VLJ how he injured his left shoulder in a truck accident in service, explaining why as an infantryman he did not seek medical care in service. Lastly, the Veteran’s VA medical records document that he has complained of left shoulder pain within the time period of his appeal. Accordingly, this new evidence proffers evidence of previously unestablished elements of the claim (a current disability and a nexus between the claimed disability and service), and the claim will be reopened. 2. Service connection for a left shoulder disability The Veteran contends he has a current left shoulder disability that is related to service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In determining entitlement to service connection, the veteran receives the benefit of the doubt so that the veteran prevails whenever the evidence in support of the claim is at least in equipoise. 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). The Veteran testified at his December 2019 hearing that he injured his left shoulder in a truck accident in 2005. He explained that he sought treatment for his left shoulder almost immediately following service at a VA hospital, and there are reports of left shoulder pain and repeated dislocations from 2007 through 2017 (the most current date for medical records in the Veteran’s file) confirming the Veteran’s statements. At the Veteran’s June 2014 VA Compensation and Pension (C&P) examination, the examiner determined there was intermittent pain, but no evidence of a chronic disability. The United States Court of Appeals for Veterans Claims (Court) has held that symptoms such as pain, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if such symptoms reach the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Here, given that the Veteran’s lay statements and the VA medical records from 2007 to 2017 demonstrating symptoms of left shoulder pain (as well as notations of chronic subacromial bursitis of the left shoulder), the Board finds that the “current disability” element has been met. As noted above, the Veteran has testified to left shoulder impairment since service, and his VA medical records corroborate his lay reports of chronic shoulder pain. Accordingly, when resolving reasonable doubt in the Veteran’s favor, the Board finds that the elements of service connection have been met. The Veteran has credibly reported injuring his left shoulder in service and has undergone treatment for chronic left shoulder pain continuously since that time, noted as chronic subacromial bursitis. Service connection for a left shoulder disability will be granted. See 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. REASONS FOR REMAND 1. Entitlement to compensable ratings for residuals of a thumb fracture and residuals of a wound to the right testicle; and entitlement to a rating in excess of 20 percent for scars due to gunshot wounds is remanded. At the Veteran’s December 2019 Board hearing, he stated that the three disabilities for which he is seeking increased ratings had worsened since his last VA examinations. Accordingly, updated examinations are necessary prior to adjudication. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 2. Entitlement to service connection for disabilities of the middle finger, ring finger, and knuckles of the right hand is remanded. The Veteran contends that he is entitled to service connection for disabilities of the middle finger, ring finger, and knuckles of the right hand. At the Veteran’s December 2019 hearing, he explained that he underwent surgery in 2005 after enduring a mortar attack in Iraq; twelve years later, he received a second surgery to remove lingering shrapnel in his hand. The Veteran is currently service connected for residuals of a right hand tendon and carpal fracture from that same mortar attack. He testified that he is unable to throw a football with his sons or grasp his hand in cold weather, and that he experiences great pain from this lingering wound in his fingers and knuckles. To date, the Veteran has not received an examination to evaluate these specific contentions. Accordingly, an examination is in order prior to adjudication. Lastly, the Veteran’s medical records are not complete in the file, and the RO should order the Veteran’s latest medical records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records relating to the Veteran. 2. Schedule an examination to determine the nature and severity of the Veteran’s residuals of a right thumb fracture. 3. Schedule an examination to determine the nature and severity of the Veteran’s residuals of a wound of the right testicle. 4. Schedule an examination to determine the nature and severity of the Veteran’s residuals of gunshot wound scars. 5. Schedule the Veteran for a VA examination by an examiner to determine the nature and etiology of any disabilities of the middle finger, ring finger, and knuckles of the right hand, to include as a result of shrapnel damage. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a diagnosis are met. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s finger and knuckle disabilities were incurred in or otherwise related to the Veteran’s service, including as a result of the 2005 mortar attack, or caused or aggravated by his service-connected tendon injury of the right hand. (Continued on the next page)   (c) If it is determined that there is another likely etiology for the Veteran’s disability, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.