Citation Nr: A21020645 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200519-85319 DATE: December 29, 2021 ISSUES Whether new and relevant evidence has been received sufficient to readjudicate the claim for service connection for a back disability. Whether new and relevant evidence has been received sufficient to readjudicate the claim for service connection for a right shoulder disability. ORDER New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for a back disability; and to that limited extent the claim is granted. New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for a right shoulder disability; and to that limited extent the claim is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF LAW 1. Evidence that may prove or disprove the issue of entitlement to service connection for a back disability was received after the November 2018 denial of that issue. 2. Evidence that may prove or disprove the issues of entitlement to service connection for a right shoulder disability was received after the November 2018 denial of that issue. CONCLUSIONS OF LAW 1. New and relevant evidence having been received, the criteria to readjudicate the claim for service connection for a back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 2. New and relevant evidence having been received, the criteria to readjudicate the claim for service connection for a right shoulder disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to September 1972 with additional service in the National Guard and Reserves. This case is on appeal from a May 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the supplemental claim decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period when new evidence was not allowed. Specifically, the Veterans submitted a January 2021statement reporting that he performed heavy lifting as part of his job during service. This statement constitutes new evidence as opposed to argument which the Board may not consider it in the adjudication of the claim. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.300). The Veteran may file a Supplemental Claim and submit or identify this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2501). If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. New and Relevant Evidence Unlike the Legacy system, which requires new and material evidence to reopen a claim, new and relevant evidence is required to have a claim readjudicated in the Appeals Modernization Act (AMA) system. See 38 C.F.R. § 3.156 (a), (d). The latter is a lesser standard than the former. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). The Veteran's claims for service connection for back and right shoulder disabilities were initially denied in a November 2018 rating decision on the basis that the evidence did not show an event, disease, or injury in service. Within a year, in April 2019, the Veteran filed a supplemental claim for the right shoulder disability, along with additional evidence. After one year, in March 2020, the Veteran filed a supplemental claim for his back and right shoulder disabilities. In the May 2020 rating decision on appeal, the RO denied service connection for the claims, finding the evidence was not new and relevant. The new evidence includes at least some evidence that the Veteran may have back and right shoulder disabilities related to service. In that regard, in June 2019, the Board received the Veteran's private medical treatment records indicating the presence of diagnoses for back and right shoulder disabilities. Thus, the Board finds that new and relevant evidence was submitted so that readjudicating the previous denied claims of service connection for back and right shoulder is warranted. See 38 C.F.R. § 3.156(d). REASONS FOR REMAND Entitlement to service connection for a back and right shoulder disability. The Veteran contends that his back and right shoulder disabilities are related to service. Specifically, he contends that during service, he was required to jump from helicopters. See September 2018 VA Form 21-526EZ. He further contends that he was required to lift heavy objects during active service. See March 2020 VA Form 21-526EZ. The Veteran's service personnel records (SPRs) show that the Veteran served as a heavy truck driver at Fort Rucker, Arkansas. His service treatment records (STRs) show no reports, complaints, or treatment for back or shoulder disorders during the active-duty portion of his service. I The Veteran's post service treatment records show he received treatment for his back and shoulder. A November 2004 MRI record shows bulging midline disc which the treating physician opined was related to back pain. Also, a March 2010 VA record shows that the Veteran complained about back and shoulder pain. The treating physician noted a joint effusion in the Veteran's back. In an August 2013 evaluation, the treating physician found degenerative changes in the Veteran's back. In a December 2013 evaluation, the treating physician also noted degenerative changes in the Veteran's right shoulder. Up until the time of this appeal, the Veteran's back and right shoulder disorders have been marked as active problems. The Veteran's private medical records show that the Veteran reported experiencing back and shoulder pain. Also, he reported an injury to the spine in April 2011. In May 2016, the Veteran was diagnosed with right posterior shoulder pain. In April 2019, he was diagnosed with lower back pain. Considering there is evidence of current disabilities of a back and right shoulder disabilities and evidence suggesting that the Veteran's disorders may be related to service in which he carried out duties as a heavy truck driver, remand is required for a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the failure to obtain a VA examination under McLendon is a pre-decisional error. These matters are REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, records review, etc. if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's back and right shoulder disabilities. The entire claims file must be reviewed by the examiner. The examiner is requested to provide an opinion as to the following: (a) Identify all back and shoulder disabilities. (b) For each disability, opine whether it is at least as likely as not (50 percent probability or greater) that any back or right shoulder disability had its onset during service, within one year of discharge from service, or is otherwise related to service, to include due to jumping from helicopters or heavy lifting during service. A rationale should be provided for opinions expressed. If an opinion cannot be offered without resort to mere speculation, the reason for this should be fully explained. L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.