Citation Nr: 21062441 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-45 299 DATE: October 7, 2021 ORDER New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left shoulder disability; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include insomnia disorder, is remanded. FINDINGS OF FACT 1. A June 1986 rating decision denied entitlement to service connection for a left shoulder disability. The Veteran received notice of this decision in June 1986 and did not submit a notice of disagreement or file new and material evidence within one year of the notification of this decision. 2. The evidence received since the final June 1986 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left shoulder disability. CONCLUSIONS OF LAW 1. The June 1986 rating decision denying a claim of entitlement to service connection for a left shoulder disability is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.21 (formerly 20.201), 20.1103. 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a left shoulder disability has been received; the claim is 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 in the United States Army from November 1966 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal of separate rating decisions dated February 2004 and April 2018, each issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a hearing before a Veterans Law Judge upon perfection of his appeal. See VA Form 9 (rec'd Aug. 23, 2018). The Veteran was informed that his hearing would take place via videoconference on June 16, 2021. See Correspondence (Apr. 19, 2021). The Veteran did not attend his hearing, nor has he requested that it be rescheduled, explained why he did not attend his hearing, or shown good cause as to why his absence should be excused. The Board accordingly concludes that the Veteran has waived his right to a hearing. See 38 C.F.R. § 20.603(d) (formerly 20.704(d)). New and Material Evidence Left Shoulder Disability 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 (2018). 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 a June 1986 rating decision, the Veteran's claim seeking entitlement to service connection for a left shoulder disability was denied because the evidence failed to establish that the disability was aggravated by the Veteran's active duty service. The Veteran was notified of the decision in a June 1986 notification letter. No new and material evidence or a notice of disagreement was received by VA within one year of the mailing of the June 1986 rating decision. See 38 C.F.R. §§ 3.156(b), 19.21 (formerly 20.201), 19.52 (formerly 20.302). As the Veteran did not appeal the decision, that rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2003, the Veteran filed a petition to reopen entitlement to service connection for a left shoulder disability. He submitted an October 2003 letter indicating that his left shoulder remained symptomatic following service and resulted in a 1987 operation performed by Dr. MZH. A notice received in December 2003 indicated that Dr. MZH's records prior to 1996 had been destroyed. In February 2004, the RO issued a rating decision denying the claim seeking service connection for a left shoulder disability on the basis that new and material had not been received. The rating decision was mailed to the Veteran on February 25, 2004. However, on February 26, 2004, the Veteran submitted a January 2004 treatment record from Dr. MZH which discussed persistence of the Veteran's left shoulder symptoms since the Veteran's active duty service. Dr. MZH confirmed that he performed a left shoulder surgery on the Veteran in 1987. This evidence was new, as it was not available at the time of the February 25, 2004 rating decision, and it was material, as it was medical evidence that tended to corroborate the lay reports presented in the Veteran's October 2003 statement regarding the nature of his post-service left shoulder surgery. This January 2004 treatment record from Dr. MZH was new and material evidence, sufficient to toll the finality of the February 2004 rating decision under 38 C.F.R. § 3.156(b). See Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014). The claim remained pending until it was adjudicated again in an April 2018 rating decision, which was timely appealed to the Board. Evidence received since the final June 1986 rating decision includes the October 2003 lay statement from the Veteran, and the January 2004 treatment record of Dr. MZH. As this evidence was new and material evidence sufficient to toll the finality of the February 25, 2004 rating decision, it was also new and material evidence received since the final June 1986 rating decision. This evidence was new as it was not previously available (and thereby considered) at the time of the June 1986 rating decision, and it was material, as it pertained to the unestablished fact of whether the Veteran's left shoulder disability may be etiologically related to his active duty service. The June 1986 rating decision denied the claim using an aggravation standard based on the RO's determination that the Veteran's left shoulder condition pre-existed his military service. While left shoulder dislocation was located on the May 1966 Report of Medical History, the Veteran's entrance examination listed the Veteran's left shoulder as "stable" and "NCD" [not currently disabling]. Pursuant to 38 C.F.R. § 3.304(b), "[o]nly such conditions as are recorded in examination reports are to be considered as noted" and "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions...." As the Veteran's left shoulder was determined to be stable at service entrance, without any objective evidence of disability, the presumption of soundness applies, and the claim shall proceed as one for service connection, as opposed to aggravation, which was the basis of the June 1986 rating decision. In light of the above, the Board concludes that new and material evidence has been received since the prior final June 1986 disallowance of the Veteran's claim seeking service connection for a left shoulder disability, and the claim is reopened. Shade, 24 Vet. App. at 117-118. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REASONS FOR REMAND section below. REASONS FOR REMAND Although the Board regrets the additional delay, the below referenced claims must be remanded to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's appeals. The Board observes that since the Agency of Original Jurisdiction (AOJ) last adjudicated the Veteran's claims in the July 2018 Statement of the Case, additional relevant evidence, to include VA treatment records added to the file in June 2021 and July 2021, has been added to the electronic claims file. The Board sent the Veteran a letter to clarify whether he wished to waive initial AOJ consideration of the newly submitted evidence. See BVA Letter (July 27, 2021). The letter specifically stated that if the Veteran did not answer within 45 days, the claims would be remanded to the AOJ. The Veteran did not respond to the letter in the time allotted. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, the Board has no choice but to remand all claims on appeal so that the AOJ can consider the newly associated evidence in the first instance and issue a Supplemental Statement of the Case, if appropriate. 1. Entitlement to service connection for a left shoulder disorder is remanded. The Board's review of the electronic claims file demonstrates that the Veteran has documented left shoulder complaints during the appellate period, see e.g. January 2004 private records of Dr. MZH and July 2020 VA treatment records, and there is an indication that this may be the result of the documented in-service complaints of left arm pain/left shoulder dislocation. See medical history provided in the January 2004 private treatment record of Dr. MZH. As such, the claim is remanded for a VA examination to assess whether the Veteran has experienced a current left shoulder disability during the appellate period that is etiologically related to his active duty service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a left hip disorder is remanded. 3. Entitlement to service connection for a right hip disorder is remanded. At the current juncture, the Board finds that no additional evidentiary development is required as to the claims seeking entitlement to service connection for left and right hip disabilities. However, these claims must be remanded to allow the AOJ to consider evidence newly received since the last AOJ adjudication of the claims in the July 2018 Statement of the Case. 4. Entitlement to service connection for PTSD is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include insomnia disorder, is remanded. By way of background, the Veteran last submitted to a VA psychiatric examination on March 27, 2018. See C&P Exam (Mar. 27, 2018). Here, the examiner concluded that the Veteran did not have a diagnosis of PTSD; however, he was diagnosed with "insomnia disorder with other medical comorbidity." See id. at Questions Nos. 1-3 et seq. In light of the differing regulatory criteria applied to service connection claims for PTSD, versus service connection claims for other acquired psychiatric disabilities, the Board has elected to bifurcate the Veteran's psychiatric claim into two distinct claims: one claim seeking service connection for PTSD, and one claim seeking service connection for any other acquired psychiatric disorder other than PTSD, to include insomnia disorder. See 38 C.F.R. § 3.304(f). Therefore, the Board has broadened its consideration in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Ultimately, the Board concludes that the claim for PTSD does not appear to require additional development, but the Board is precluded from issuing a determination on that claim at this time, and it is remanded for the AOJ to consider evidence newly received since the last AOJ adjudication of the claim in the July 2018 Statement of the Case. The Veteran's claim seeking entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include insomnia disorder, is remanded for further evidentiary development. The March 2018 VA psychiatric examiner diagnosed the Veteran with insomnia disorder with other medical comorbidity and explained that the Veteran's sleep problems are due to his nonservice-connected benign prostatic hyperplasia and chronic pain. The VA examiner did not specify which of the Veteran's medical conditions resulted in chronic pain, and it is unclear whether the VA examiner was referring to nonservice-connected disabilities, the Veteran's service-connected hemorrhoids, or possibly his left shoulder complaints. As such, this claim is remanded as inextricably intertwined with the pending claim seeking service connection for a left shoulder disability, and an addendum VA medical opinion should be sought to determine whether the Veteran's insomnia disorder is proximately due to, the result of, or aggravated by chronic pain associated with the Veteran's left shoulder disability or his service-connected hemorrhoids. See 38 C.F.R. § 3.310. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination before an appropriate VA examiner to assess the etiology and severity of the Veteran's current left shoulder disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Identify whether the Veteran has been diagnosed with a left shoulder disability during the appellate period (which dates back to October 2003). (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has experienced a current left shoulder disability during the appellate period that was incurred in or is otherwise etiologically related to the Veteran's active duty service? The VA examiner is requested to consider and address the service treatment records showing frequent left shoulder dislocations in January 1967 and left arm/shoulder pain in February 1967, as well as the Veteran's lay reports of persistence of left shoulder symptoms since service. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner to assess the etiology of the Veteran's currently diagnosed insomnia disorder with other medical comorbidity. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current insomnia disorder with other medical comorbidity is proximately due to, the result of, or aggravated (i.e., underwent any incremental increase in disability, regardless of its permanence) by chronic pain associated with the Veteran's service-connected hemorrhoids or current left shoulder disability? 3. The AOJ is requested to ensure that all medical opinions issued by the VA examiners are accompanied by complete rationales based on each examiner's clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. 4. Readjudicate all claims on appeal based on all evidence in the Veteran's electronic claims file. If any benefit sought remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. M. Galante Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.