Citation Nr: 20005590 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 17-03 566 DATE: January 23, 2020 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a right shoulder disorder is reopened. Service connection for a right shoulder disability is granted. REMANDED Entitlement to a compensable initial rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an April 2007 rating decision, the RO denied entitlement to service connection for a right shoulder disorder. The Veteran did not file a Notice of Disagreement nor perfect his appeal. Additionally, new and material evidence was not submitted within one year of the April 2007 rating decision. 2. The evidence received since the April 2007 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for right shoulder disorder. 3. The Veteran’s right shoulder disability is related to his active service. CONCLUSIONS OF LAW 1. The April 2007 rating decision denying service connection for a right shoulder disorder is final. 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received and the claim of entitlement to service connection for a right shoulder disorder is reopened. 38 C.F.R. § 3.156. 3. The criteria for service connection for a right shoulder disorder have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Marine Corps from September 1964 to January 1992, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart, the Meritorious Service Medal, and the Combat Action Ribbon. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision. In September 2019, the Veteran provided testimony at a Board hearing. A transcript of the hearing is of record. At the hearing, the Veteran waived RO consideration for additional evidence added to the record since the issuance of any earlier statements of the case (SOC). Therefore, the Board is permitted to consider this evidence in the first instance. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disorder Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. In an April 2007 rating decision, the RO determined that the medical evidence of record did not indicate a nexus between the Veteran’s right shoulder disorder and his active service. The Veteran did not perfect his appeal or submit new and material evidence within one year of either the April 2007 decision. Therefore, the decision became final. Since the denial, additional evidence associated with the claims file include VA and private medical opinions relating the Veteran’s right shoulder disorder to injuries that incurred during active duty service. Consequently, the claim of service connection for a right shoulder disorder is reopened. 2. Service connection for a right shoulder disability The Veteran seeks entitlement to service connection for a right shoulder disability, which he relates to in-service helicopter crashes during combat service in the Republic of Vietnam. The Veteran reports a history of right shoulder pain since the crashes. Service treatment records show that the Veteran reported right shoulder discomfort in May 1991, with a diagnosis of fibrositis and treatment by an epidural block. Post-service, a November 1991 private operative report shows a diagnosis fibrositis of the right trapezius and right shoulder with three trigger points. Moreover, a November 2006 VA examination report reveals a diagnosis of bilateral shoulder strain. It is undisputed that the Veteran incurred a right shoulder injury during combat service. See 38 U.S.C. § 1154(b), 38 C.F.R. § 3.304(d). He also has a currently diagnosed right shoulder disorder. In a September 2019 statement, a VA physician reported reviewing the Veteran’s medical records and opined that the chronic pain and discomfort that the Veteran experiences in his right shoulder is highly likely a result of his active duty military service. Additionally, in an October 2019 statement, a private physician reported that the Veteran’s chronic pain in his right shoulder is related to the injures encountered during his active military service. Accordingly, service connection for a right shoulder disability is granted. REASONS FOR REMAND 1. Entitlement to a compensable initial rating for bilateral hearing loss is remanded. The Veteran was last evaluated for his service-connected bilateral hearing loss for rating purposes in May 2014. He testified at the September 2019 hearing that his hearing loss disability has increased in severity. In connection with his claim, the Veteran submitted an October 2019 private audiogram from O. C. Physicians’ Hearing Services. However, it is not clear from the reports whether the Maryland CNC word list was used. Consequently, the Board finds that a remand is necessary in order for the Agency of Original Jurisdiction (AOJ) to clarify, if possible, whether such speech discrimination testing was accomplished with the Maryland CNC word list. The matters are REMANDED for the following action: 1. If possible, confirm with the O. C. Physicians’ Hearing Services whether the Maryland CNC word list was used in the audiometric testing completed in October 2019. All efforts to obtain such information should be documented. 2. After completing the aforementioned development, schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral hearing loss. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.