Citation Nr: 21063348 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-10 071 DATE: October 14, 2021 ORDER The previously denied claim of entitlement to service connection for a right shoulder disability, to include as secondary to service-connected knee disabilities, is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected knee disabilities, is remanded. FINDING OF FACT 1. In a July 2015 rating decision, the RO denied service connection for a right shoulder disability, to include as secondary to service-connected knee disabilities; the Veteran did not appeal that decision or submit new and material evidence within the year following notification of that decision. 2. Evidence associated with the claims file since the July 2015 denial relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The July 2015 RO decision, which denied the Veteran's claim of right shoulder disability, to include as secondary to service-connected knee disabilities, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a right shoulder disability, to include as secondary to service-connected knee disabilities. 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 March 1984 to June 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision of the Department of Veterans Affairs (VA). In September 2019, the Board denied reopening the claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Remand (JMR), the Court vacated the Board's decision regarding the issue and remanded the claim to the Board for compliance with the terms of the JMR. In January 2021 and June 2021, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). New and Material Claim In a July 2015 rating decision, the RO denied service connection for a right shoulder disability, to include as secondary to service-connected knee disabilities. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. 38 C.F.R. § 3.156(b). Therefore, the July 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence received since that rating decision includes VA treatment records and private treatment records. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. All questions regarding the merits of the reopened claim, are addressed in the REMAND section of this decision. REASONS FOR REMAND Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected knee disabilities, is remanded. The Veteran seeks service connection for a right shoulder disability, to include as secondary to service-connected knee disabilities. The Veteran states that he injured his right shoulder after falling due to his knee buckling. He is service connected for right and left knee disabilities. A review of the evidence shows that a December 2014 VA shoulder and arm conditions examination report reflects a diagnosis of right shoulder strain and right rotator cuff tear. The VA examiner opined that the Veteran's claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The VA examiner stated that the Veteran reported that his shoulder was injured when his knees gave way. However, there was no medical record of this injury to confirm. Therefore, a positive opinion could not be given. Private medical treatment records show the Veteran underwent a right rotator cuff repair in March 2017. A diagnosis of right rotator cuff arthropathy was provided. In this case, the December 2014 VA examiner addressed the question whether the Veteran's right shoulder condition was proximately due to or the result of his service-connected disabilities. However, there was no discussion with respect to aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). As such, the Board finds that a new VA examination and secondary causation opinion is necessary to fully and fairly adjudicate this issue. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA medical examination to determine the nature and etiology of his right shoulder condition. The entire electronic claims file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies and provide the following opinions: a) is it at least as likely as not (at least an approximate balance of positive and negative evidence) that the diagnosed right shoulder condition was caused by the Veteran's service-connected knee disabilities? b) is it at least as likely as not (at least an approximate balance of positive and negative evidence) that the diagnosed right shoulder condition was aggravated (increased in severity beyond the natural progress of the condition) by the Veteran's service-connected knee disabilities? If aggravation is found, the examiner should provide the baseline manifestations of the claimed disability found prior to aggravation and the increased manifestations which, in the examiner's opinion, are proximately due to the Veteran's service-connected knee disabilities. A complete rationale must be provided for all opinions expressed and conclusions reached. The Board recognizes the practical difficulties of scheduling examinations in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.