Citation Nr: 21003189 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-52 434 DATE: January 19, 2021 ORDER The petition to reopen the claim for entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT 1. The Veteran’s claim of entitlement to service connection for a shoulder disability was denied in a January 2009 rating decision that became final. 2. Evidence received since the final January 2009 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a left shoulder disability. CONCLUSION OF LAW 1. The January 2009 rating decision denying entitlement to service connection for a shoulder disability is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a shoulder disability has been received; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1996 to December 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Regional Office (RO). The appeal was previously remanded in April 2020. The Veteran was granted service connection for obstructive sleep apnea in July 2020; thus, this issue is no longer before the Board. The petition to reopen the claim for entitlement to service connection for a left shoulder disability The RO previously denied the Veteran’s claim of entitlement to service connection for a shoulder disability in a January 2009 rating decision because the claimed sleeping disorder was not service connected and thus, consideration of service connection could not be given to the shoulder condition. The Veteran did not appeal the claim seeking entitlement to service connection for a shoulder disability, the January 2009 rating decision became final as to this claim. 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the January 2009 rating decision, the Veteran was denied entitlement to service connection for a shoulder disability due to a lack of service connection for a sleep disability. The evidence received since the January 2009 rating decision is both new and material in that service connection has been granted for obstructive sleep apnea during the appellate period. This new evidence addresses the basis for the previous denial, that is, service connection for a sleep disability; and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened, but will be remanded for further evidentiary development. REASONS FOR REMAND Entitlement to service connection for a left shoulder disability is remanded. The Veteran has asserted that his current left shoulder disability is secondary to his sleep disability. The Veteran underwent VA examination in November 2020. He was diagnosed with shoulder impingement syndrome, rotator cuff tendonitis, and degenerative arthritis of his left shoulder. Opinions provided indicate that his service connected back, sleep, and psychiatric disabilities did not cause his claimed shoulder disability. However, no opinion was provided whether either service-connected disability aggravated his claimed shoulder disability. A claim of secondary service connection requires an examiner to assess whether the Veteran’s claimed disability was caused or aggravated beyond its natural progression by a service-connected disability. As the November 2020 examiner is inadequate because it did not address the issue of aggravation, addendum opinions are warranted. El-Amin v. Shinseki, 26 Vet. App. 136 (2013), Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, remand is warranted for addendum opinions. The matters are REMANDED for the following action: Obtain addendum opinion from an appropriate VA examiner that addresses the nature and etiology of the Veteran’s current shoulder disability. A copy of this REMAND must be provided to the VA examiner. Following a complete review of the electronic claims file, the examiner must opine on the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current shoulder disability was incurred in or is otherwise etiologically related to this active duty service or manifested within one year following his active service? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current shoulder disability is proximately due to, the result of, or aggravated by his service-connected posttraumatic stress disorder (PTSD), thoracolumbar myofascial pain syndrome, or obstructive sleep apnea? In providing the requested opinions, the examiner is requested to consider and discuss the diagnosed shoulder impingement syndrome, rotator cuff tendonitis, and degenerative arthritis and Veteran’s August 2007 lay statement that he has to sleep on one side and it is affecting his movement in his arm. In answering question (b), the examiner is reminded of the recent precedential decision by the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019), which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence.” See id. at 239. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical experience and medical expertise; established medical principles; and the relevant evidence of record. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.