Citation Nr: 20009943 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-00 260 DATE: February 6, 2020 ORDER New and material evidence having been received, reopening of entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a left shoulder disability is granted. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for his left shoulder disability that was denied by a September 2012 rating decision. The Veteran was notified of this decision and his appellate rights and failed to file a timely Notice of Disagreement (NOD) or submit new and material evidence within 1 year. 2. The evidence received since the September 2012 rating decision is not cumulative of evidence previously of record and relates to an unestablished fact necessary to substantiate the claims for service connection for the Veteran’s left shoulder disability. 3. The preponderance of the evidence reflects that the Veteran’s left shoulder disability is due to his time in service. CONCLUSIONS OF LAW 1. The September 2012 rating decision that denied the Veteran’s claim for service connection for a left shoulder disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2019). 2. The evidence received since the September 2012 rating decision is new and material, and the requirements for establishing service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1112, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2019 and a copy of the transcript is of record. New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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, to include by triggering the Secretary’s duty to assist. Id. at 118. In a September 2012 rating decision, the RO denied service connection for a left shoulder disability. The RO considered the Veteran’s service treatment records (STRs) and noted there was no evidence of symptoms or treatment for his left shoulder. While the RO considered the private medical opinion linking the Veteran’s left shoulder condition to his active service, because there was a lack of treatment in service, the RO denied service connection. Ultimately, the RO determined there was no nexus to service. The Veteran was notified of that decision and his appeal rights, and he did not submit any new and material evidence within one year of the issuance of the rating decision. Thus, the September 2012 rating decision is final. 38 U.S.C.§ 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2018). In November 2013, the Veteran filed an application to reopen the claim. Since the September 2012 rating decision, additional medical records and lay evidence have been received. Specifically, the Veteran submitted new lay evidence in the form of a buddy statement describing the accident where the Veteran injured his left shoulder. The Veteran’s comrade witnessed the accident and saw the Veteran’s dislocated left shoulder. The Veteran also testified at his August 2019 Board hearing about his injury and the subsequent pain he has felt since the initial injury. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s back disability claim. 38 C.F.R. § 3.156(a). The Board addresses the merits of the Veteran’s claim below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2019); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2019). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s April 1974 separation examination noted that he suffered from a simple left arm fracture that was treated with a cast for 6 weeks. Additionally, the Veteran testified that he injured his left shoulder in a motorcycle accident while off-duty. He also submitted a buddy statement describing the motorcycle accident. Accordingly, as there is evidence of an in service injury, the service connection element at issue before the Board is nexus. In a January 2011 private opinion, the Veteran’s doctor opined that his left shoulder disability stemmed from his in service accident. The examiner noted the Veteran’s consistent complaints of shoulder pain since the accident. The Veteran also reported that he had dislocated his shoulder several times since service and eventually needed to have shoulder surgery. The Veteran now has limited range of motion in his left shoulder. The Board finds that the June 2011 private nexus opinion provides competent credible evidence for the Veteran’s claim. The Board assigns this opinion high probative value. Additionally, there is no probative evidence against the claim. Service connection for the Veteran’s left shoulder disability is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). Last, the Board acknowledges that a November 2016 VA memorandum indicated that the Veteran’s in service accident was the result of willful misconduct such that service connection was not warranted. Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n) (2019). It involves “deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard of its probable consequences.” 38 C.F.R. § 3.1(n)(1). A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n)(2). Willful misconduct will not be determinative unless it is the proximate cause of the injury. 38 C.F.R. § 3.1(n)(3). Here, the Board finds the Veteran’s conduct of racing his motorcycle off-duty does not rise to the level of willful misconduct as defined by VA. There is no evidence to suggest the Veteran’s conduct involved conscious wrongdoing as the Veteran testified that he never received any orders from his supervisor that permission was needed for recreational cross racing. While the VA memorandum is considered, the Board finds the Veteran’s actions did not constitute willful misconduct. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.