Citation Nr: 20021787 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-05 881A DATE: March 27, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disability; the appeal to reopen is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disability; the appeal to reopen is granted. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. In a May 2003 decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for service connection for a left shoulder disability. 2. The evidence pertaining to the Veteran’s left shoulder disability submitted after the May 2003 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. In a May 2003 decision, the AOJ denied the Veteran’s claim for service connection for a right shoulder disability. 4. The evidence pertaining to the Veteran’s right shoulder disability submitted after the May 2003 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 5. The preponderance of the evidence is against finding that the Veteran’s left shoulder condition began during active service, manifested to a compensable degree within one year of separation from service, or is otherwise related to an in-service injury or disease. 6. The preponderance of the evidence is against finding that the Veteran’s right shoulder condition began during active service, manifested to a compensable degree within one year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The May 2003 denial of the claim for service connection for a left shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 2. As additional evidence received since the May 2003 denial is new and material, the criteria for reopening the claim for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 3. The May 2003 denial of the claim for service connection for a right shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 4. As additional evidence received since the May 2003 denial is new and material, the criteria for reopening the claim for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. 5. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to February 2000. 1. & 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for left and right shoulder disabilities The Veteran’s service connection claim for left and right shoulder disabilities was denied in a May 2003 rating decision, based on a finding that there were no current left and right shoulder disabilities. The Veteran did not perfect an appeal of the May 2003 decision, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. Regardless of the determination reached by the RO, the Board must find new and material evidence to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the final denial of May 2003 includes VA treatment records and an examination demonstrating that the Veteran has a current diagnosis of left and right shoulder conditions. The Board finds that the newly submitted evidence is material; therefore, it provides a basis for reopening the Veteran’s claim for service connection for left and right shoulder disabilities. Service Connection 3. & 4. Entitlement to service connection for left and right shoulder disabilities The Veteran contends that service connection for left and right shoulder disabilities is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Alternatively, where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309 When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. §§ 5107; 38 C.F.R. § § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has diagnoses of right shoulder impingement syndrome, right rotator cuff tear, a right labral tear, including superior labral anterior-posterior lesion (SLAP), and acromioclavicular osteoarthritis of both shoulders. Therefore, the first element of service connection is met. Shedden, supra. Service treatment records show injury to the left shoulder and recurrent dislocation from July through September 1980, and right shoulder strain from June through July of 1997. Furthermore, the Veteran’s separation examination in 1999 noted complaints of shoulder pain. Accordingly, an in-service injury has been shown. However, the question remains whether the currently diagnosed disability is related to the in-service bilateral shoulder injuries. The Veteran had an examination for his bilateral shoulder conditions in February 2003. The examiner found that there was not enough objective evidence to diagnose a pathology in the Veteran’s left and right shoulders. Additionally, x-rays taken of both shoulders showed no abnormality. VA treatment records from August 2013 note an assessment of shoulder pain with uncertain etiology, and that the Veteran has good range of motion of his shoulder, but it is a little weak when trying to lift against resistance and a little bit tender. VA treatment records from September 2013 to November 2013 note hypertrophic changes in the acromioclavicular joint and the possibility of some mild shoulder impingement syndrome. VA treatment records September 2016 note that the Veteran fell off a ladder and injured his right shoulder. VA treatment records from October through November 2016 note that the Veteran had complaints of right shoulder pain and that the MRIs of the Veteran’s right shoulder revealed supraspinatus, infraspinatus tendinopathy, and subscapularis tendinopathy. The Veteran had another examination for his bilateral shoulder conditions in February 2017. The Veteran was diagnosed with right shoulder impingement syndrome, right rotator cuff tear, a right labral tear, including superior labral anterior-posterior lesion (SLAP), and acromioclavicular osteoarthritis of both shoulders. The examiner opined that the Veteran’s current left and right shoulder conditions were less likely than not incurred in or caused by his active service. The examiner noted that the Veteran’s service treatment records show complaints of recurrent right shoulder pain, treated accordingly, and complaints of left shoulder pain after a motor vehicle accident in 1980. The examiner also noted that the Veteran’s separation exam shows complaints of bilateral shoulder pain. The examiner further noted that the 2003 examination found no pathology for both shoulders and normal x-rays. Regarding the Veteran’s right shoulder, the examiner stated that post service treatment records are silent until 2016 when he injured his right shoulder was diagnosed with degenerative joint disease, rotator cuff tear, labral tear, and impingement syndrome. The examiner indicated that there was no evidence of chronicity found after release from active duty. Regarding the Veteran’s left shoulder, the examiner stated that post service treatment records are silent for evaluation, diagnosis of treatment of left shoulder pain until 2013, which noted incidental findings of degenerative joint disease on x-rays. The Board finds the February 2017 examiner’s opinion to be highly probative. It is shown to have been based on a thorough review of the Veteran’s record, including the Veteran’s service treatment records and post-service medical records. It is also accompanied by sufficient explanations and reasoning as to how the conclusion was reached. Furthermore, there is no medical opinion to the contrary. As such, the Board finds that this opinion is highly probative. Additionally, although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matters of the diagnosis and etiology of left and right shoulder disabilities are complex medical matters that fall outside the realm of common knowledge of a lay person. See Clayburn v. West, 12 Vet. App. 488, 496-97 (1997) (holding that a veteran is not competent to relate currently diagnosed joint disease to the continuous post-service back injury). In this regard, such an opinion requires specialized medical knowledge. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of left and right shoulder disabilities. With respect to presumptive service connection for arthritis, there is no evidence that the Veteran was diagnosed with it within one year of separation from service, or that it had reached a compensable level of severity at that time. Rather, the first evidence of record of potential arthritis for the left shoulder is in 2013 and 2016 for the right shoulder. Given that the Veteran separated from service in 2000, the presumption for service connection for arthritis does not apply. In view of the above, the preponderance of the evidence is against the claim for service connection for left and right shoulder disabilities. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claims, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.