Citation Nr: 21061541 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-43 190 DATE: October 4, 2021 ORDER The petition to reopen the previously denied claim for service connection for a left shoulder disability is granted. REMANDED Service connection for a left leg disability is remanded. Service connection for a right leg disability is remanded. Service connection for a left shoulder disability is remanded. Service connection for a neck disability, to include status post foraminotomy is remanded. Service connection for a back disability, to include lumbar facet joint arthrosis is remanded. Service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The RO denied service connection for a left shoulder disability in a September 2013 rating decision; the Veteran did not appeal that decision. 2. Some of the evidence received since the September 2013 rating decision is new and triggers a duty to assist when considered with the evidence of record. CONCLUSION OF LAW The criteria for reopening the claim for a left shoulder disability have been met. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1968 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2015 and July 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. The hearings scheduled for February 2020 and March 2020 were postponed until August 2021. In April 2021, the Veteran received notification of the August 2021 hearing. The Veteran did not appear for the hearing and good cause has not been shown. Thus, the hearing request is considered withdrawn. 38 C.F.R. § 20.704 (d). New and Material Evidence With respect to the legacy system, the standard for reopening a finally disallowed claim rests on whether new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. at 117. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The petition to reopen the claim for service connection for a left shoulder disability is granted. The Veteran's claim for service connection for a left shoulder disability, among others, was denied in a September 2013 rating decision because a causal nexus was not shown. See September 2013 notification letter. The Veteran did not file a notice of disagreement with the September 2013 rating decision and no additional evidence was received within a year of that decision. The September 2013 rating decision is therefore final. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.302, 20.1103. The evidence of record at the time of the September 2013 rating decision included the Veteran's DD 214 indicating service in Vietnam and that he was assigned to the 45th surgical hospital. The evidence also included the Veteran's service records, which showed treatment for left shoulder pain with a diagnosis of muscle spasm and normal X-ray in May 1970 and normal findings on separation examination in June 1970.Military personnel records were also in the file. Moreover, the evidence included April 2013 and June 2013 VA treatment records noting some neurologic symptoms and weakness in the left shoulder. The evidence also included an August 2013 VA examination report. At that examination, the Veteran reported that he was injured in Vietnam when he jumped into a ditch landing on his left shoulder and another service member landed on him. Evidence added to the record since the September 2013 rating decision, includes additional lay statements, VA treatment records, and Social Security Administration (SSA) records. In the March 2015 and August 2015 statements, the Veteran indicated that he injured his left shoulder during combat when he was thrown by a mortar explosion and someone fell on top of him. The new evidence, particularly the Veteran lay statement, at the very least triggers VA's duty to assist to determine whether the Veteran sustained injuries during a claimed mortar attack and whether a left shoulder disability is related to such injury. Thus, it is considered new and material evidence, and the claim is reopened. The reopened claim is addressed further in the remand section. REASONS FOR REMAND 1. Service connection for a left leg disability is remanded. 2. Service connection for a right leg disability is remanded. 3. Service connection for a left shoulder disability is remanded. 4. Service connection for a neck disability, to include status post foraminotomy is remanded. 5. Service connection for a back disability, to include lumbar facet joint arthrosis is remanded. 6. Service connection for a left hip disability is remanded. The Veteran contends that his left shoulder, neck, back, left hip, and bilateral leg disabilities are related to injuries sustained in a mortar attack, possibly involving shrapnel, during service in Vietnam. See March 2015 statement and August 2015 statement. In various statements, the Veteran indicated that suffered shrapnel injuries from mortar explosions in service. See February 1971 VA 21-3101 (Veteran's report of shrapnel injuries occurred in February 1970); January 2009 VA 21-0781 (Veteran's report of a bomb explosion in November 1969 and in December 1969); and September 2010 VA 21-0781 (Veteran's report of a September 1969 mortar explosion). The Veteran's personnel records indicate that he was stationed in Vietnam from September 1969 to July 1970 and was assigned to the 45th Surgical Hospital from November 1969 until July 1970. The MACV reports appear to indicate that Tay Ninh Base Camp, where the 45th Surgical Hospital operated, was regularly attacked by mortar fire in December 1969. However, it does not appear that the AOJ has made further attempts to verify whether there were mortar attacks in September 1969, November 1969, or February 1970. Another opinion must be obtained as to the left shoulder disability. Although the Veteran was afforded a VA shoulder examination in August 2013, the examiner addressed only the etiology of the rotator cuff syndrome. However, the examiner noted numerous diagnoses including left rotator cuff syndrome; degenerative joint disease, glenohumeral joint; and degenerative joint disease, acromioclavicular (AC) joint. Upon remand, an addendum opinion addressing all the etiology of all the Veteran's diagnosed shoulder disabilities should be obtained. The Veteran has diagnoses related to his neck, back, and hip. VA treatment records show a June 2013 diagnosis of cervical spondylosis and degenerative disc disease with C7-8 left radiculopathy. The Veteran also has a diagnosis of degenerative disc disease at L5-S1 and October 2016 imaging shows mild left hip osteoarthritis. A nexus opinion would be helpful in this case. The matters are REMANDED for the following action: 1. Attempt to verify whether the Veteran's base experienced mortar and/or bombing attacks as reported, i.e., a September 1969 mortar explosion, November 1969 mortar/bomb explosion, December 1969 bomb explosion, and February 1970 shrapnel explosion. If it is determined that records corroborating such events do not exist or that further efforts to obtain these records would be futile, issue a formal finding consistent with 38 C.F.R. § 3.159 (e)(1). 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's left shoulder, bilateral leg, neck, back, and left hip disabilities. The examiner should opine whether it is at least as likely as not that the Veteran's claimed disabilities had onset in service, or are otherwise related to his active service. For EACH of the diagnosed left shoulder disabilities, to include left rotator cuff syndrome; degenerative joint disease, glenohumeral joint; and degenerative joint disease of the AC joint, the examiner should opine whether it is at least as likely as not that ANY of these disorders onset in service, or are otherwise related to his active service, to include the May 1970 left shoulder pain and reported injuries in service. A rationale must be provided for all of the opinions rendered. In doing so, the examiner should consider the Veteran's description of his in-service injuries, symptoms, and treatment (if any) as well as his post-service symptoms. The examiner should indicate whether the nature of the injuries, symptoms, and treatment in service and thereafter align with how the currently diagnosed disabilities are known to develop or- whether the Veteran's reports are inconsistent with medical knowledge or otherwise implausible. (Continued on the next page) If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.