Citation Nr: 21003456 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-59 929 DATE: January 21, 2021 ORDER The application to reopen the claim for service connection for left shoulder disorder is granted. Service connection for a left shoulder disorder is granted. FINDINGS OF FACT 1. The Veteran served on active duty from October 1981 to October 1986 and from January 1987 to June 2002. 2. In an unappealed May 2013 rating decision, the Regional Office (RO) denied, among other things, service connection for a left shoulder disorder. 3. The evidence submitted since the May 2013 decision included VA and private medical evidence that addressed an unestablished element of the claim. 4. A left shoulder disorder has been related to the in-service injury. CONCLUSIONS OF LAW 1. The May 2013 rating decision, which denied service connection for a left shoulder disorder, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the May 2013 rating decision is new and material; the claim for a left shoulder disorder is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 3. A left shoulder disorder was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The claim for a left shoulder disorder was originally denied in a May 2013 rating decision for lack of a medical nexus. There was evidence of a current diagnosis and an in-service incurrence. Evidence submitted since the May 2013 final denial includes a VA examination report, VA and private medical records, and a Board hearing transcript. A July 2020 private medical opinion (added to the claims file in September 2020) found that the Veteran’s left shoulder disorder was related to service. As the this directly addresses a previously unestablished element of the claim and was associated with the file after the final denial in May 2013, it is both new and material and the application to reopen the claim is granted. Service Connection for Left Shoulder Disorder Having reopened the claim, the Board will address the appeal on the merits. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Turning to the evidence, the first element of service connection – a current disability – is met. A February 2013 VA examiner diagnosed left shoulder impingement syndrome. A June 2016 VA MRI showed a high-grade partial thickness rotator cuff tear of the left shoulder. A March 2017 VA examiner diagnosed supraspinatus/infraspinatus/subscapularis tendinopathy left side, and mild acromioclavicular degenerative joint disease (DJD). As such, the first element of service connection is met. The second element – an in-service incurrence – is also met, as the Veteran’s service treatment records (STRs) show treatment for a left shoulder disorder. An April 1986 STR showed treatment of a possible pulled shoulder muscle with a muscle spasm. In March 1996, he complained of left shoulder pain. In March 1997, he complained of shoulder pain that had lasted for six months and was diagnosed with a muscle strain and rule/out stress fracture of the left scapula. In a later treatment note from the same month, the Veteran was treated for a shoulder strain that occurred while lifting a “J divot” in a training exercise in July 1996. He further complained of left shoulder pain in April 2001, and in May 2001 stated he had a three to four-year history of left shoulder pain. He was diagnosed with classic impingement of the left shoulder and chronic tendonitis of the left biceps tendon. In September 2002, shortly after discharge, the Veteran continued to complain of pain in the first VA medical record following separation. Additionally, he reported to both VA and private providers, and during his June 2020 Board hearing, that left shoulder pain began and never stopped following the July 1996 training exercise with the “J divot.” As such, the second element of service connection – an in-service incurrence – is met. As to medical nexus, the evidence is in conflict. On one hand, a February 2013 VA examiner stated that the Veteran did not seek treatment for 9-years after separation from service and his diagnosis at the time of the examination (left shoulder impingement syndrome) was different than that in service and therefore less likely than not caused by service. The basis of this opinion is not supported by the evidence as the Veteran was treated for left shoulder pain at a VA facility in September 2002, within a few months after separation from service. Next, a March 2017 VA examiner also found that the Veteran’s left shoulder disorder was less likely than not caused by service. The examiner reasoned that there was no basis in medical fact identified to support the claim, because the in-service shoulder impingement symptoms evaluated in 2001 were diagnosed as being secondary to left biceps tendinopathy, which a June 2016 VA MRI showed to have resolved. In contrast, in a July 2020 private medical opinion, the clinician found that the Veteran’s current disability was as likely as not related to service. She reasoned that he reported the injury in service, had continuous complaints of treatment, and lacked subsequent injuries. She stated the Veteran’s shoulder disabilities were the type that could develop during the course of a “normal” life but were most likely to arise directly from a traumatic event such as what he experienced on active duty. Further, the clinician related that most people did not heal without surgery, and that the Veteran’s conservative approach of repeated attempts at rehabilitation had likely resulted in permanent dysfunction. Based on the above, the Board places less probative value on the February 2013 examination as it was based, in part, on an absence of post-service treatment for many years which is not supported by the evidence. Next, the March 2017 opinion relied on a 2001 STR showing a relationship between the Veteran’s shoulder disorder and left biceps tendinopathy; however, the STRs show complaints of left shoulder pain beginning prior to the diagnosis of the left biceps tendinopathy. Rather, the Veteran has consistently alleged that shoulder pain started following the incident in July 1996 and, the STRs and post-service medical evidence reflect fairly consistent complaints regarding the left shoulder. As such, the private physician’s reasoning, which addresses the in-service injury to the shoulder and ongoing complaints, is most consistent with the medical evidence. Thus, the Board places greater probative weight on the July 2020 opinion which supports the appeal. As a current diagnosis is shown, there is evidence of an in-service incurrence, and a medical nexus between the two, service connection is warranted and the appeal granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.