Citation Nr: 21029425 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-11 891 DATE: May 13, 2021 ORDER As new and material evidence has been received, the previously denied claim of service connection right shoulder disability, is reopened. REMANDED Entitlement to service connection for end stage renal disease (ESRD) is remanded. Entitlement to service connection for depression and anxiety, as secondary to ESRD, is remanded. Entitlement to service connection for a right shoulder disability is remanded FINDING OF FACT 1. A September 2014 rating decision denied the Veteran's claim of service connection for a right shoulder disability. The Veteran did not perfect an appeal of that decision or submit new and material evidence within one year; it is final. 2. The evidence received since the September 2014 rating decision is new and material for the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to June 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veterans Affairs (VA) regional office. The Veteran testified at a hearing with the undersigned in December 2020. 1. Right Shoulder Disability The Veteran's initial claim of service connection was denied in a September 2014 rating decision because there was no evidence of a chronic condition in service or a nexus between the Veteran's current right shoulder disability and his active service. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence of record at that time included the Veteran's service treatment records, VA treatment records and an August 2014 VA examination. Since the September 2014 rating decision, the Veteran provided testimony at hearing that his right shoulder has continued to bother him since his active service and that he self-treated. The Board finds this evidence is "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the Veteran's claim, whether the Veteran has a chronic right shoulder disability. The evidence is neither cumulative nor redundant of the evidence of record at the time of the September 2014 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND 1. Entitlement to service connection for ESRD 2. Entitlement to service connection for depression and anxiety, as secondary to ESRD The Veteran contends his chronic kidney disease is causally related to his service, The claims are remanded to obtain an adequate medical opinion. The August 2016 VA opinion is inadequate as the examiner specifically noted that pertinent records were not available for review. The examiner also based the negative opinion, in part, on the Veteran's "limited time duration of exposure" at Camp Lejeune. The applicable regulations do not considered the "duration of exposure." The applicable regulations require that the Veteran served no less than 30 days at Camp Lejeune during the period beginning August 1, 1953 and ending December 31, 1987. 38 C.F.R. § 3.307 (a)(7)(iii). This Veteran meets those criteria. An April 2020 private opinion does not include an adequate rationale. The opinion provider reviewed prior opinions in the record but had very little discussion of the specific facts of the Veteran's case. The basis of the opinion is due largely to the examiner's conclusion that the Veteran did not have any other risk factors. The depression claim is intertwined with the ESRD. The Veteran testified that he received VA treatment for related complaints. On remand, any outstanding treatment records should be obtained. 3. Right Shoulder Disability The claim is remanded to obtain medical opinion that considers the Veteran's competent reports of continuous right shoulder complaint since service. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with the Veteran's assistance identify and obtain copies of any pertinent medical or VA treatment records related to his kidney disease, depression, and right shoulder and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified. The Veteran specifically identified psychiatric treatment at the Bath, NY VAMC. All related records should obtained. 2. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the ESRD. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on a review of the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability or greater) that the ESRD had its onset during active service or is related to any incident of service, including his presumed exposure to contaminated water at Camp Lejeune? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above, obtain a medical opinion on the likely etiology of any diagnosed psychiatric disability. Copies of all pertinent records must be made available to the examiner for review. Based on a review of the record, the examiner must answer the following: (a) is it at least as likely as not that any diagnosed psychiatric disability is (i) caused by or (ii) aggravated by the ESRD. Aggravation here is defined as any increase in disability. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 4 Schedule the Veteran for a VA examination with an appropriate VA examiner, to determine the nature and likely etiology of any diagnosed right shoulder disability. Copies of all pertinent records must be made available to the examiner. The examiner must answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed right shoulder disability was incurred in or is otherwise related to service? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.