Citation Nr: 20007182 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-48 342 DATE: January 28, 2020 ORDER The previously denied claim for service connection for a disability of the bilateral shoulders is reopened. The previously denied claim for service connection for a disability manifested by headaches is reopened. REMANDED Entitlement to service connection for bilateral shoulder disability is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction denied service connection for a bilateral shoulder disability and for a disability manifested by headaches in May 2005; the Veteran did not appeal that decision, and no new nad material evidence was submitted within the year after he was notified of the decision. 2. Evidence received since May 2005 is new and relates to a previously unestablished fact necessary to substantiate the claims for service connection for a disability of the shoulders and for service connection for migraine headaches. CONCLUSIONS OF LAW 1. The May 2005 decision denying service connection for a bilateral shoulder disability and migraine headaches is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence to reopen the previously denied claims for service connection for a bilateral shoulder disability and for a disability manifested by headaches has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to July 1997. This appeal comes to the Board of Veterans’ Appeals (Board) from decisions of the Agency of Original Jurisdiction (AOJ) issued in May 2015 and June 2016. In May 2005, the AOJ issued a decision denying service connection for a disability of the bilateral shoulders. The AOJ also denied service connection for migraine headaches. The AOJ mailed a copy of the decision and a letter explaining it to the address identified by the Veteran in his most recent prior correspondence to VA. The Veteran did not appeal this decision. Nor did he submit new and material evidence within one year after the AOJ notified him of the decision. VA may reopen and review a previously denied claim if new and material evidence is received or submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 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 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). According to the May 2005 decision, the AOJ denied the claim for a disability of the shoulders because, “[t]here is no evidence provided which show[s] a current disability.” The decision denied the headaches claim for the same reason – i.e. the AOJ concluded that there was no evidence of a current disability. Since May 2005, the AOJ obtained a VA examination report, dated August 2017, which indicates diagnoses of rotator cuff tear of both shoulders and status post left shoulder arthroscopy. These diagnoses are new, because they were unknown to the AOJ in May 2005. The report is material because it tends to show that the Veteran now meets the current disability requirement of his shoulders claim. Accordingly, the claim for service connection for a disability of the shoulders is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In June 2016, the AOJ obtained an examination report which indicates a diagnosis of “migraine including migraine variants.” For the same reasons that support a reopening of the shoulders claim, the June 2016 headaches examination report amounts to new and material evidence. The reopened claims are addressed in the remand section below. REASONS FOR REMAND 1. Service connection for bilateral shoulder condition is remanded. The Board regrets the additional delay, but it is necessary to remand this case to obtain an adequate medical opinion regarding the etiology of the Veteran's bilateral shoulder disability. According to the Veteran, his duties as an Army cook required him to set up heavy tents and field dining facilities, which led to his current disabilities of the shoulders. In a September 2015 correspondence, an Army physician wrote: I have recently evaluated and treated (the Veteran) for his right shoulder… I have reviewed his medical records for an injury to this left shoulder during his time on active duty which were consistent with a rotator cuff injury at that time. His right shoulder injury is typical of long-standing wear and overuse during his time on active duty. This injury is commonly seen in active duty soldiers with MOS’s that require heavy lifting and/or substantial use of ruck/body armor. It is my opinion (that) his active duty service may have contributed to the injury of his shoulder and requirement for surgical treatment. The Board has considered the possibility of granting the claim based on this opinion. Unfortunately, the opinion appears to be based on “commonly seen” injuries without discussing the specifics of the Veteran’s medical history. The Veteran underwent a VA examination in August 2017. The examiner noted diagnoses of bilateral rotator cuff tears, with arthroscopy of the left shoulder. Based on a review of the in-service and post-service medical history, the examiner opined that it is less likely than not that the Veteran’s bilateral shoulder disabilities were related to an in-service disease, injury, or event. The examiner gave the following explanation for this conclusion: There is no evidence the right shoulder condition was caused by in service injury. The diagnosis of rotator cuff repair involving the supraspinatus and labral tear in 3/20/2015 [sic]. This reflects a severe injury involving these areas of the shoulder as a post-service injury rather than in-service injury. Physical therapy notes: dated 14 Nov. 2016 - 12 Dec. 2016 notes state “Pt wants to return to fishing and golfing.” There is no evidence the left shoulder condition was caused by in service injury. In reviewing the medical records an acute shoulder strain was reported which resolved. A post service rotator cuff injury in June of 2017 [sic] there is no nexus or chronicity during [sic] in service. The Veteran’s October 1996 retirement examination report includes a note that indicates arthritis of the shoulders. The August 2017 opinion is inadequate because it fails to address this evidence. The opinion also apparently failed to consider the Veteran’s statement describing chronic symptomatology during and following service. Under these circumstances, the AOJ must obtain a new opinion. 2. Service connection for migraine headaches is remanded. The Veteran contends that he has had migraine headaches since a motor vehicle accident in 1988, during his active duty service. The Veteran’s extensive service treatment records indicate that he complained of frontal headache symptoms in March 1988. The treating physician noted that the Veteran had residual frontal headaches following a motor vehicle accident. In June 2016, the Veteran was afforded a VA examination. According to the examiner, it is less likely than not that the Veteran’s migraine headaches were related to an in-service injury, event, or disease, including the motor vehicle accident. The rationale was that the service treatment records did not indicate significant complaints or treatment for migraines or other headaches. However, the absence of contemporaneous medical documentation, alone, is not a sufficient reason for rejecting the Veteran’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-6 (2006). The examiner does not appear to have considered the Veteran’s statements describing chronic symptomatology following the in-service motor vehicle accident and, instead, relied primarily on this absence of additional medical documentation. For this reason, the opinion is inadequate, and the Board will remand the headaches claim for the AOJ to obtain a new opinion. The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record to identify any outstanding VA and non-VA treatment records regarding the issues on appeal that are not currently associated with the record. Make all reasonable attempts to obtain any treatment records so identified and associate them with the record. If the identified records cannot be obtained, inform the Veteran and the representative, and afford them an opportunity to provide any outstanding records. 2. Once the development directed above is complete, forward the case to a qualified professional for the preparation of an addendum opinion as to the etiology of the Veteran’s claimed bilateral shoulder disability or disabilities. A complete copy of the record must be provided to the examiner, including a copy of this remand. The examiner must consider lay reports of observable symptomatology. After a thorough review of the record, the examiner should respond to the following: (a.) Identify any and all present diagnoses pertaining to the Veteran's shoulders. (b.) For each diagnosis, is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran's diagnosed disability had its onset during active service or within one year of separation from service, or, that the disability is otherwise resulted to any in-service disease, injury, or event, including the Veteran’s excessive overhead lifting during service? The examiner must specifically address the reference to bilateral shoulder arthritis noted in the Veteran’s October 1996 retirement physical examination report. The examiner should also consider the September 2015 letter from an Army physician which indicates that, “[the Veteran’s] active duty service may have contributed to the injury of his shoulder and requirement for surgical treatment.” The examiner should provide a complete rationale explaining the medical reasons for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, the examiner should fully explain why he or she cannot provide the requested opinion and identify what additional evidence (if any) would make it possible to provide a more definitive opinion. 3. Once the development directed above is complete, forward the case to a qualified professional for preparation of an addendum opinion as to the etiology of the Veteran’s migraine headaches. A complete copy of the record must be provided to the examiner, including a copy of this remand. The examiner must consider lay reports of observable symptomatology. After a thorough review of the record, the examiner should respond to the following: Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s migraines had their onset during active service or within one year of separation from service, or, otherwise resulted from active military service, to include his March 1988 motor vehicle accident? The opinion must reflect consideration of the Veteran’s in-service reports of headaches both before and after the March 1988 motor vehicle accident, and his competent reports of experiencing headaches since the March 1988 motor vehicle accident. The examiner should provide a complete rationale explaining the medical reasons for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, the examiner should fully explain why he or she cannot provide the requested opinion and identify what additional evidence (if any) would make it possible to provide a more definitive opinion. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Michael Nye Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.