Citation Nr: 20021275 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 13-25 538A DATE: March 25, 2020 ORDER The application to reopen the claim of entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. In a May 2010 rating decision, the RO originally denied the claim for entitlement to service connection for a left shoulder disability in part because the evidence showed no nexus. 2. Evidence received since the final May 2010 rating decision relates to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for a left shoulder disability. CONCLUSION OF LAW 1. Evidence received since the final May 2010 rating decision is new and material and the application to reopen the claim for entitlement to service connection for a left shoulder disability is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army National Guard of Louisiana on active duty for training from February 1989 to August 1989 and on active duty from October 1990 to June 1991. This matter is on appeal from a rating decision dated March 2015. The Veteran testified before the undersigned Veteran’s Law Judge at a January 2020 Board of Veterans’ Appeals (Board) hearing. A transcript has been associated with the record. New and Material Evidence 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 and material evidence is defined as evidence not previously submitted to agency decision makers that bear directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). 1. The application to reopen the claim of entitlement to service connection for a left shoulder disability is granted. In a May 2010 rating decision, the RO originally denied the claim for entitlement to service connection for a left shoulder disability because the evidence showed no nexus. The decision became final. The Veteran sought to reopen his claim for entitlement to service connection for a left shoulder disability. Evidence received since the final May 2010 rating decision includes a January 2020 buddy statement from a fellow serviceman and former roommate, K. P., who wrote that during Desert Storm, he and the Veteran were both heavy wheel vehicle mechanics, and that one day, they were pulling out the transmission of a lifted truck, when the transmission slipped off the jack and injured the Veteran’s left shoulder. See January 2020 Statement in Support of Claim form. The Board finds the evidence new as it was not previously submitted to agency decision makers. The evidence is also material as it addresses the previously unestablished fact of nexus. It is not redundant and, in the very least, when considered with the evidence of record, would trigger VA’s duty to assist by providing a medical opinion, which might “raise a reasonable possibility of substantiating the claim.” See Shade, 24 Vet. App. at 110. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. VA failed to fulfill its duty to assist the Veteran by obtaining an adequate medical opinion. A negative VA medical etiology opinion was obtained in August 2019. See August 2019 VA etiology opinion. However, the VA examiner failed to consider the Veteran’s credible lay statements regarding the onset and history of relevant symptomatology. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, the claim must be remanded for a new opinion. Moreover, at the January 2020 Board Hearing, the Veteran discussed two incidents of when he injured his left shoulder during his time with the National Guard that he contends are the sources of his current left shoulder disability. First, he injured his shoulder while running a course during active duty for training. See Board Hearing Transcript, p. 9. Treatment for a shoulder injury during active duty for training is in fact documented in his service treatment records. See March 10, 1989 Service Treatment Record. He then injured his left shoulder again after he was deployed for Desert Storm. He asserts that while he was on active duty, when he was working as a tank mechanic, a transmission he was taking out of a lifted truck fell onto his left shoulder and arm. See Hearing Transcript, p. 3. He was treated with a shot and given a sling. The Veteran’s service personnel records show that his specialty was track vehicle repair. Moreover, the Veteran in January 2020 submitted a buddy statement from fellow serviceman and former roommate, K. P., who wrote that during Desert Storm, he and the Veteran were both heavy wheel vehicle mechanics, and that one day, they were pulling out the transmission of a lifted truck, when the transmission slipped off the jack and injured the Veteran’s left shoulder. See Buddy Statement. Based on the foregoing, the Board finds the two in-service incurrences corroborated. Therefore, the new opining examiner should also be instructed that the two in-service incurrences are conceded by VA. The matters are REMANDED for the following action: 1. Forward the claims file (including this Remand) to a new, appropriate examiner to obtain an etiology opinion. Whether a new examination is required is up to the discretion of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not that each and every left shoulder current disability diagnosis had its onset in the Veteran’s active duty for training and/or active duty service, or is otherwise etiologically related to the Veteran’s active duty for training and/or active duty service. The examiner is instructed to assume as true the following two in-service injuries: (i) The Veteran injured his left shoulder while running a course during active duty for training. See Board Hearing Transcript, p. 9. Treatment for a shoulder injury during active duty for training is in fact documented in his service treatment record. See March 10, 1989 Service Treatment Record. (ii) The Veteran injured his left shoulder again after he was deployed for active duty during Desert Storm. While working as a tank mechanic, he had a transmission fall out of a lifted truck and come down on his left shoulder and arm. See Hearing Transcript, p. 3. He was treated with a shot and given a sling. See also Buddy Statement from fellow serviceman and former roommate K. P. The term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the lack of documented treatment in service and post service medical records, while probative, cannot serve as the sole basis for a negative finding. The credible lay contentions must be considered, explicitly addressed, and weighed in making the determination as to whether a nexus exists. This includes: (i) the credible lay statements given by the Veteran at the January 2020 Board Hearing, (ii) the credible lay statements given by fellow serviceman and roommate K.P., who stated that every day during service since the injury where a truck transmission fell onto the Veteran’s left shoulder and arm, he witnessed the Veteran visibly suffering from left shoulder pain (see Buddy Statement), and (iii) the lay statements given by the Veteran’s sister, who stated that the Veteran had no observable problems when he entered service but came out with such observable pain inasmuch as he is unable to hold different things or hold his arm above his head. See January 2016 Sister’s Statement. Any opinion expressed must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. (Continued on the next page)   3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Cho, 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.