Citation Nr: 20022406 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 19-03 800 DATE: March 31, 2020 ORDER The application to reopen the claim of entitlement to service connection for right shoulder disability is granted. The application to reopen the claim of entitlement to service connection for myopia and astigmatism (claimed as eyesight and vision condition) is denied. REMANDED Service connection for right shoulder disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2008 rating decision, the RO denied service connection for right shoulder disability and myopia and astigmatism (claimed as eyesight and vision condition). 2. Evidence received since the April 2008 rating decision is not cumulative and redundant of evidence previously of record and does relate to an unestablished fact necessary to substantiate the claim of service connection for right shoulder disability. 3. Evidence received since the April 2008 rating decision is cumulative and redundant of evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim of service connection for myopia and astigmatism (claimed as eyesight and vision condition). CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for right shoulder disability, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has not been received to reopen the claim of service connection for myopia and astigmatism (claimed as eyesight and vision condition), the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty to include from July 1965 to July 1967, from January 1991 to October 1991, as well as in May 1984, to include service in Vietnam and in Southwest Asia. He appeals these claims stemming from a July 2017 administrative decision. A statement of the case was issued in December 2018. The Veteran and his wife provided testimony before the undersigned Veterans Law Judge (VLJ) in October 2019. The VLJ clarified the issues on appeal; clarified the concept of service connection and new and material evidence; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims; inquired as to the existence of potential outstanding records; and held the record open for 90 days for the submission of additional evidence. It was specifically clarified that the issue on appeal as to the shoulder involves the right and not the left shoulder. The issue has been amended by the undersigned to reflect this clarification. The actions of the VLJ comply with 38 C.F.R. § 3. 103. Additional evidence including VA treatment records has been added to the record and the 90-day period has passed. New and Material Evidence 1. Right shoulder disability In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 C.F.R. § 3.156 (a) creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. In an April 2008 rating decision, the RO denied the claim of service connection for right shoulder disability based on the finding that there was no treatment for the right shoulder in service and no evidence of a chronic right shoulder condition linked to his service. Significantly, the rating decision indicated that no service treatment records (STRs) for the period from July 1965 to July 1967 were available for review. No notice of disagreement or new and material evidence was submitted within one year and the decision became final. In June 2017 the Veteran attempted to reopen the claim. He testified that he has suffered right shoulder pain and symptoms since an injury in a self-defense class. Newly added evidence includes STRs from the period from July 1965 to July 1967. These show that in October 1966, he was treated for a right shoulder soft tissue injury reported after judo practice. A VA shoulder examination in January 2019 reflects the examiner’s finding that no opinion was necessary because there were no current right shoulder complaints, only left shoulder complaints and disability, and there was a negative separation examination in 1967 following the injury in October 1966. Here, a subsequent VA treatment record, dated in January 2020, reflects narrowing of the acromioclavicular joints (emphasis added). Clearly, there has been some confusion in the reporting and recording of the complaints in terms of which shoulder is involved. Regardless, there are new STRs not reviewed in 2008, and there is some new evidence indicative of current disability. The low threshold for new and material evidence has been met. Reopening of the claim is warranted. 2. Myopia and astigmatism (claimed as eyesight and vision condition) In the April 2008 rating decision, the RO denied the claim of service connection for myopia and astigmatism (claimed as eyesight and vision condition) on the basis that this condition, the only eye condition present, was considered a constitutional developmental abnormality and not subject to service connection. No notice of disagreement or new and material evidence was submitted within one year and the decision became final. Evidence considered included the available STRs as noted above and post service treatment records which showed no other eye conditions. The STRs of record noted that the Veteran had myopia and astigmatism since age 25. Of note, congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303 (c). In June 2017 the Veteran attempted to reopen the claim. He testified that he believes the dust he got in his eyes in Vietnam could have caused his vision problems because the problems started after his Vietnam service. Evidence added to the record reflects that the Veteran continues to have refractive error. See November 2016 VA optician note. Multiple subsequent VA treatment records with review of systems are replete with reference to otherwise normal eyes. The Board finds that the evidence submitted since the April 2008 denial is redundant or cumulative of the evidence of record at the time of the last prior final decision. The RO had previously considered the fact that the Veteran had myopia and astigmatism. There is no new eye disorder noted nor does the Veteran contend there is new disorder. The critical facts have not changed: the eye condition present is considered a refractive error and not subject to service connection. Consequently, the claim may not be reopened because no new and material evidence has been received. While 38 C.F.R. § 3.156 (a) creates a low threshold, and does not require new and material evidence as to each previously unproven element of a claim, the Veteran has not presented new and material evidence with respect to any previously unproven element of the claim. This claim to reopen is denied. REASONS FOR REMAND Right shoulder disability The Veteran urges that current right shoulder disability is due to the aforementioned injury in service. While he previously was found to have no relevant right shoulder disorder, only a left shoulder disorder, his testimony, newly added STRs and recent VA treatment record suggests right shoulder disorder may be related to service. Although a VA shoulder examination was conducted in January 2019, the examination report is inadequate. Here, it does not clearly address any current right shoulder disorder and the Veteran’s assertions articulated at the hearing. Finally, the actual nature of this disability is unclear and should be clarified on remand also. Therefore, remand is necessary. 38 C.F.R. § 3.159 (c). The matters are REMANDED for the following action: 1. All updated pertinent VA treatment records should be obtained and associated with the claims file. 2. The Veteran should be scheduled for a VA examination by an appropriate clinician to ascertain whether the Veteran has had during this appeal any right shoulder disorder related to active service to include injury in October 1966. The examiner is asked to identify the actual nature of any right shoulder disorder. The claims file must be reviewed. The examiner should obtain a complete medical history concerning the Veteran’s   alleged in-service injury. The examiner should address the following: Whether any right shoulder disorder shown during this appeal is as likely as not (50 percent or greater probability) related to active service. The examiner should consider any theories raised by the Veteran at the examination. A complete rationale for the medical opinion is required. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.