Citation Nr: 21012521 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-11 251 DATE: March 4, 2021 ORDER New and material evidence having been received, the claim for service connection for a bilateral shoulder disability is reopened. REMANDED Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for dyslexia, claimed as secondary to service- connected head injury, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a heart condition, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. An unappealed March 2006 rating decision denied entitlement to service connection for bilateral shoulder disabilities. 2. Evidence received since the March 2006 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a bilateral shoulder disability. CONCLUSION OF LAW The March 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral shoulder disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1962 to July 1964. In a December 2018 decision, the Board denied the claim to reopen service connection for a bilateral shoulder disability, service connection for a heart condition, service connection for hypertension, and service connection for dyslexia. The Veteran appealed the decision to the United States Court of Veterans Claims (Court). In December 2019, the Court granted a Joint Motion of the parties and remanded the claims to the Board for action consistent with the Joint Motion. The Board previously remanded this case in August 2020 for VA examinations and the issuance of a Supplemental Statement of the Case. New and Material Evidence 1. Claim to reopen service connection for a bilateral shoulder disability Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156 (a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that 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. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. An unappealed February 2000 rating decision denied service connection for degenerative joint disease of both shoulders. The rating decision found that the evidence did not link his bilateral shoulder disabilities to active service or a service-connected disability. The Veteran perfected an appeal of the rating decision but withdrew his appeal prior to a Board decision on the claim. Unappealed rating decisions dated in August 2002 and March 2006 denied reopening the claim for service connection for bilateral shoulder disabilities. A claim to reopen service connection for bilateral shoulder disabilities was received in March 2009. An August 2009 rating decision denied reopening of service connection for bilateral shoulder disabilities. The Veteran appealed the decision to the Board. The evidence received since the last final rating decision includes VA medical records and written statements from the Veteran. In the October 2009 notice of disagreement, the Veteran stated that a doctor told him that his shoulders were injured in one of his falls in service between 1962 and 1964. The evidence received since the last final rating decision relates to unestablished facts necessary to substantiate the claim for service connection for a bilateral shoulder disability, as it pertains to a potential relationship between his shoulder disabilities and an in-service injury. Accordingly, the claim for service connection for a bilateral shoulder disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for a heart condition is remanded. VA treatment records reflect current diagnoses of cardiomegaly and atrial fibrillation. In May 2016, a VA examiner opined that the Veteran’s uncontrolled hypertension was responsible for a progression to atrial fibrillation. In September 2020, a VA examiner opined that hypertension is not related to service-connected disabilities through the intermediate step of obesity. The examiner opined that the Veteran's weight gain causing obesity/overweight is most likely caused by dietary factors and advanced age and less likely caused by physical inactivity caused by a cervical spine condition. The Veteran is service-connected for nephrolithiasis. In May 2016, a VA examiner opined that nephrolithiasis is related to hypertension and the use of NSAID medication. The examination report noted that the Veteran used NSAID medication for pain associated with his spine and knee conditions since 1999. The May 2016 examination shows a relationship between his hypertension and his kidney condition, namely, that the nephrolithiasis was caused by hypertension. The examination does not, however, indicate whether the Veteran’s service-connected kidney condition aggravates his hypertension. The relationship between the Veteran’s use of NSAID medications for his service-connected spine and knee conditions and hypertension has also not been addressed. A VA examination is necessary to ascertain whether hypertension is caused or aggravated by a kidney disorder or is related to the use of NSAID medication for his service-connected knee and spine disabilities. The case is being remanded for a medical opinion. The Veteran’s heart disability will also be remanded, as it is inextricably intertwined with the Veteran’s hypertension. 3. Entitlement to service connection for dyslexia claimed as secondary to a service-connected head injury is remanded. The Veteran contends that his service-connected head injury caused dyslexia. In a December 2013 statement, he reported that he has had dyslexia since a head injury in service. VA treatment records show that he has complained of dyslexia. To date, the record does not include a medical opinion addressing whether dyslexia is related to his service-connected head injury. The case is being remanded for a medical opinion. 4. Entitlement to service connection for a right and left shoulder disabilities is remanded. The Veteran contends that he sustained shoulder injuries due to falls. He has indicated that a physician told him that his shoulder injuries are related to falls during service between 1962 and 1964. VA treatment records dated in September 2001 reflect his report that his knees buckled, and he injured his shoulders as a result. VA medical records dated in June 1999 reflect complaints of neck pain radiating to the upper extremities. Correspondence dated in February 1999 noted cervical spine pain that spread to the shoulders. The record does not include a medical opinion addressing whether his shoulder disabilities are related to service or a service-connected cervical spine disability. The case is being remanded for a medical opinion. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a VA examiner about the etiology of hypertension. The examiner must address the following: (a) The examiner must provide an opinion as to whether hypertension is at least as likely as not caused by the use of NSAID medications for service-connected knee and back disabilities. The examiner must provide a rationale for the opinion. (b) The examiner must provide an opinion as to whether hypertension is at least as likely as not aggravated by the use of NSAID medications for service-connected knee and back disabilities. The examiner must provide a rationale for the opinion. (c) The examiner must opine as to whether hypertension is aggravated by service-connected nephrolithiasis. The examiner must provide a rationale for the opinion. 2. Obtain a medical opinion from a VA examiner about the etiology of dyslexia. (a) The examiner must opine whether dyslexia is proximately due to the Veteran’s service-connected head injury. The examiner must provide a rationale for the opinion. (b) The examiner must opine whether dyslexia is aggravated by the Veteran’s service-connected head injury. In answering this question, the examiner should consider VA treatment records showing that the Veteran reported a history of dyslexia since his head injury in service. The examiner must provide a rationale for the opinion. 3. Obtain a medical opinion from a VA examiner about the etiology of bilateral shoulder disabilities. (a) The examiner must opine whether the Veteran’s bilateral shoulder disabilities are at least as likely as not due to service, including his fall in service in 1964. The examiner must consider the September 2001 VA treatment records, in which the Veteran reported that his knees buckled, causing him to fall and injure his shoulders. The examiner must provide a rationale for the opinion. (b) The examiner must opine whether the Veteran’s bilateral shoulder disabilities are at least as likely as not proximately due to his service-connected disabilities of the cervical spine and upper extremities. The examiner must provide a rationale for the opinion. (c) The examiner must opine whether the Veteran’s bilateral shoulder disabilities are at least as likely as not aggravated by his service-connected disabilities of the cervical spine and upper extremities. The examiner must provide a rationale for the opinion. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.