Citation Nr: 21061593 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-35 863 DATE: October 4, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a back disorder is granted. New and material evidence having been received, the application to reopen the claim for service connection for a right shoulder disorder is granted. New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a left shoulder disorder is denied. Service connection for lumbar spine disc herniation and degenerative disc disease (DDD) is granted. Service connection for right shoulder acromioclavicular joint (ACJ) separation is granted. FINDINGS OF FACT 1. In a final rating decision issued in April 2007, the Agency of Original Jurisdiction (AOJ) denied service connection for a bilateral shoulder disorder and determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for a back disorder. 2. Evidence added to the record since the final April 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for back and right shoulder disorders. 3. Evidence added to the record since the final April 2007 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left shoulder disorder. 4. Resolving all doubt in favor of the Veteran, his currently diagnosed lumbar spine disc herniation and DDD is related to his military service. 5. Resolving all doubt in favor of the Veteran, his currently diagnosed right shoulder ACJ separation is related to his military service. CONCLUSIONS OF LAW 1. The April 2007 rating decision that denied service connection for a bilateral shoulder disorder and determined that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for a back disorder is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has not been received to reopen a claim of entitlement to service connection for a left shoulder disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for lumbar spine disc herniation and DDD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for right shoulder ACJ separation have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2000 to August 2004. This matter comes before the Bard of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 60 days for the submission of additional evidence, which was received in August 2021. New and Material Evidence 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a back disorder. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right shoulder disorder. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left shoulder disorder. By way of background, VA received the Veteran's original claim for service connection for a back disorder in June 2004. In a September 2004 rating decision, the AOJ considered the Veteran's service treatment records (STRs) and a June 2004 VA examination. In this regard, the AOJ noted that, while he was treated for mechanical back pain in service in 2003, no permanent residual or chronic disability was shown by his STRs or upon VA examination. Specifically, the AOJ observed that the June 2004 VA examination showed no residual symptoms or objective physical findings of the lumbar spine, and the examiner found that the Veteran's lumbar strain had resolved. Thus, the AOJ found that, in the absence of a chronic disability or permanent residuals, service connection for a back disorder was denied. Following the receipt of the Veteran's application to reopen a claim of entitlement to service connection for a back disorder in March 2005, a June 2005 rating decision, which was issued in July 2005, confirmed and continued the prior denial on the same basis as the September 2004 rating decision. Thereafter, VA received the Veteran's subsequent application to reopen a claim of entitlement to service connection for a back disorder and his original claim for service connection for right and left shoulder disorders in December 2006. In an April 2007 rating decision, the AOJ again considered the Veteran's STRs and found that new and material evidence had not been received in order to reopen a claim of entitlement to service connection for a back disorder. The AOJ further found that, while his STRs showed complaints of shoulder pain, which was diagnosed as a strain and treated conservatively, in October 2003, the remainder of such records were negative for any complaints, treatment, or diagnosis referable to a shoulder disorder. It was also noted that there was no evidence of a current right or left shoulder disorder since the Veteran left military service. Thus, in light of the absence of permanent residuals or a chronic disability related to his right or left shoulder, the AOJ denied service connection for such claimed disorders. In April 2007, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the April 2007 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ 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 means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final April 2007 rating decision includes post-service VA and private treatment records, May 2012 VA examinations, an August 2021 private opinion, and the Veteran's lay statements, to include his testimony at the June 2021 Board hearing. In this regard, such evidence reflects that the Veteran has current back and right shoulder disorders and, while the May 2012 VA examiner found that such were unrelated to his military service, Dr. L.J. favorably opined that they were indeed related to his military service in August 2021. Thus, as the newly received evidence addresses the basis of the prior denial, i.e., evidence of a current disability related to the Veteran's military service, it is not cumulative or redundant of the evidence of record at the time of the April 2007 decision and raises a reasonable possibility of substantiating his claims for service connection for back and right shoulder disorders. Accordingly, new and material evidence has been received and such claims are reopened. However, with regard to the Veteran's claim for service connection for a left shoulder disorder, the evidence received since the final April 2007 decision continues to fail to show that he has a current left shoulder disability related to his military service. Specifically, the May 2012 VA examination revealed that he had a normal left shoulder and his post-service treatment records are negative for a current diagnosis of a left shoulder disorder. Moreover, while the Veteran continues to allege that he has a current left shoulder disorder, such statements are duplicative of those of record at the time of the issuance of the April 2007 rating decision. Consequently, the Board finds the evidence added to the record since the final April 2007 denial is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left shoulder disorder. Therefore, as new and material evidence has not been received, the Veteran's application to reopen such claim must be denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to service connection for a back disorder. The Veteran contends he has a current back disorder that is directly related to his miliary service. Specifically, he testified that he started have back pain due to the rigors of his military service, which worsened after an incident in 2003, in which he injured himself after moving a 500-pound pallet of rifles onto a truck by hand. In this regard, the Veteran's STRs reveal that he complained of back pain in September 2003, October 2003, and May 2004 as a result of lifting multiple heavy boxes the day prior to the onset of his pain. He was given an assessment of mechanical back pain and lumbar paraspinal strain. He also reported he had recurrent back pain in his June 2004 Report of Medical History wherein it was noted that he had back pain since June 2003. However, at a June 2004 VA examination, the examiner found that the Veteran's lumbar strain resolved and he had no functional limitations. Thereafter, at a May 2012 VA examination, mechanical back pain was diagnosed and the examiner opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he reasoned that, while the Veteran was seen multiple time for mechanical back pain during service, it was pain with normal physical findings. He also noted that the STRs were negative for any injury, and his complaints at the time of examination were different from his complaints in-service, although they were still mechanical in nature. Thus, he concluded there was no indication the Veteran's current mechanical back pain was related to his in-service mechanical back pain. Conversely, in August 2021, Dr. L.B., a private physician, reviewed the Veteran's STRs and post-service treatment records, noted diagnoses of lumbar spine disc herniation and DDD, and opined that such disorders were at least as likely and causally related to the Veteran's pre-existing (i.e., prior to his recent work-related injury in January 2020) chronic lower back condition by 51 percent probability or better. In this regard, he explained that the impact of bending, lifting, twisting, walking, reaching, pushing, and pulling involved in his occupation and activities of daily of living over the years and since his injury in 2003, have culminated to wear and tear visible in recent diagnostic imagery of April 2020 MRI and prima fascia evidence of neurological impact as evident in the February 2021 EMG/NCV. Based on the foregoing, the Board finds that the evidence as to whether the Veteran's current back disorder is related to his military service to be in relative equipoise. In this regard, both the May 2012 VA examiner and Dr. L.B. are medical professionals, considered all relevant evidence, and offered a rationale for their opinions. Thus, such opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed lumbar disc herniation and DDD is related to his military service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 5. Entitlement to service connection for right shoulder disorder. The Veteran contends he has a current right shoulder disorder that is directly related to his military service. In this regard, he reports that he incurred an injury to the right shoulder as a result of moving a 500-pound pallet of rifles onto a truck by hand in 2003. In this regard, the Board notes that, on the Veteran's September 1999 enlistment examination, right elbow open reduction and internal fixation (ORIF) at age 8 was noted; however, clinical evaluation of his upper extremities was normal and no shoulder disorder was noted. Thus, the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. Moreover, as indicated previously, his STRs reflect his report of an injury as a result of lifting multiple heavy boxes in September 2003, and he also indicated that he had shoulder pain since June 2003 in his June 2004 Report of Medical History completed at separation. At a May 2012 VA examination, right shoulder ACJ separation was diagnosed and the examiner opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he explained that, while the Veteran reported an injury to his right shoulder during service, there were no STRs documenting such injury. The examiner also noted an X-ray performed at the time of the Veteran's separation showed mild ACJ separation, but he indicated that he was under the impression that such pre-existed his service since there were no shoulder complaints except at discharge. Thus, he concluded that, since the Veteran had a history of ORIF of the right elbow prior to service, his current right shoulder ACJ could be related to such accident. In this regard, the examiner opined that the Veteran's right shoulder disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. Specifically, he explained that the Veteran's ACJ separation most likely occurred prior to service and, since there were no relevant complaints except at discharge, there was no indication that any incident of his military service would have aggravated such disorder. Conversely, in August 2021, Dr. L.B., a private physician, reviewed the Veteran's STRs and post-service treatment records, noted a diagnosis of right shoulder chronic ACJ sprain, and opined that such was likely related to the aforementioned in-service injury by greater than 51 percent. In this regard, Dr. L.J. noted that the Veteran had a physical deformity of right shoulder fibrosed chronic ACJ sprain with step up deformity. He also noted that he was not currently treating the Veteran for his right shoulder as he has adapted to the permanent limitation of full overhead reaching without discomfort and is not affected by the visual appearance of the ACJ deformity with elevation. Dr. L.J. also noted that the Veteran had a medical history of right shoulder pain in March 2012 and a radiology reported indicated Grade III ACJ separation. Based on the foregoing, the Board finds that the evidence as to whether the Veteran's current right shoulder disorder is related to his military service to be in relative equipoise. In this regard, both the May 2012 VA examiner and Dr. L.B. are medical professionals, considered all relevant evidence, and offered a rationale for their opinions. Thus, such opinions are entitled to equal probative weight. Furthermore, while the May 2012 VA examiner found that the Veteran's right shoulder disorder was related to his pre-existing ORIF of the right elbow, he did not take into account the Veteran's June 2004 report that his right shoulder pain had its onset in June 2003. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed right shoulder ACJ separation is related to his military service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.