Citation Nr: 22010520 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 17-12 090 DATE: February 23, 2022 ORDER New and material evidence has been presented, and the claim for service connection for a left shoulder disability is reopened. REMANDED Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected right shoulder disability, is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected right shoulder disability, is remanded. Entitlement to a rating in excess of 30 percent for a right shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is remanded. FINDING OF FACT A May 2008 rating decision denied the Veteran's request to reopen his service connection claim for a left shoulder disability; the evidence received since the May 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the service connection claim for a left shoulder disability, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been submitted, and the Veteran's service connection claim for a left shoulder disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1978 to November 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Department of Veterans Affairs (VA) rating decision. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2021. A transcript of that hearing is of record. Reopening Claim Legal Criteria 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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Factual Background and Analysis The Veteran filed a request to reopen a service connection claim for a left shoulder disability in January 2008, which was denied by a May 2008 rating decision. He did not submit any new and material evidence pertaining to this issue within a year of the rating decision, meaning that the May 2008 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the May 2008 rating decision, the evidence of record included the Veteran's service treatment records (STRs), VA medical records, and private medical records. The AOJ denied the claim as the evidence submitted was not new and material. In February 2015, the Veteran filed a request to reopen his previously denied service connection claim for a left shoulder disability. He asserted that his left shoulder disability was secondary to his service-connected right shoulder disability. Evidence received since the May 2008 rating decision includes additional VA medical records, additional private medical records, Social Security Administration (SSA) records, and the testimony of the Veteran at the September 2021 Board hearing. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously denied claim. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Accordingly, the claim is reopened. REASONS FOR REMAND Regarding the Veteran's service connection claims for a left shoulder disability and lumbar spine disability, at the September 2021 Board hearing, the Veteran testified that these conditions were secondary to or aggravated by his service-connected right shoulder disability. The Veteran's medical records show that in March 2003, he reported left shoulder pain after a work injury. In February 2004, he reported that he injured his back and left shoulder at work. In May 2004, he reported back pain. In August 2004, he reported having chronic back pain. In July 2005, he was diagnosed with bilateral shoulder pain. In August 2005, the Veteran injured his left shoulder. In June 2007, he reported that he injured his left shoulder in 2002. In August 2006, he reported that he was compensating for his shoulders. A left shoulder x-ray showed mild degenerative arthritis and a left shoulder MRI showed mild impingement. In September 2006, he underwent left shoulder surgery. An August 2015 lumbar spine x-ray showed arthritis. While the Veteran was afforded a VA examination in June 2015 for his right shoulder disability, the VA examiner did not offer an opinion regarding the cause of any left shoulder disability or lumbar spine disability. As such, a remand is necessary to afford the Veteran a new VA examination with opinions on the cause of the Veteran's left shoulder disability and lumbar spine disability. Regarding the Veteran's increased rating claim for a right shoulder disability, in May 2021, he reported that his right shoulder disability had worsened. At the September 2021 Board hearing, he testified that he had worsening right shoulder symptoms. As such, the Veteran's report and testimony shows that his right shoulder disability has increased in severity, and as such, he should be afforded a new VA examination to assess the current severity of his right shoulder disability. The issue of entitlement to a TDIU rating is inextricably intertwined with the adjudication of the other remanded issues, and it too will be remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private medical records that pertain to the Veteran's right shoulder disability, left shoulder disability, and lumbar spine disability. 2. Then, schedule the Veteran for a VA examination to determine the cause of the Veteran's left shoulder disability and lumbar spine disability. The examiner should respond to the following: a. Identify by diagnosis each current left shoulder disability and lumbar spine disability found on examination. b. Is it at least as likely as not (50 percent or greater) that any left shoulder disability and/or lumbar spine disability was caused by a service-connected disability, to include the Veteran's right shoulder disability? Why or why not? The examiner should discuss the medical evidence showing left shoulder and back injuries, the objective medical evidence, and the lay statements of the Veteran regarding the cause of his left shoulder disability and lumbar spine disability. c. Is it at least as likely as not (50 percent or greater) that any left shoulder disability and/or lumbar spine disability was aggravated by a service-connected disability, to include the Veteran's right shoulder disability? Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of any left shoulder disability and/or lumbar spine disability before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of any left shoulder disability and/or lumbar spine disability. 38 C.F.R. § 3.310 d. If a diagnosed left shoulder disability and/or lumbar spine disability is determined to have not been caused or aggravated by a service-connected disability, identify the cause for the disability that is considered to be more likely, and explain why. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right shoulder disability. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the report include results of active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained. Furthermore, the examiner should opine as to whether any right shoulder limitation of motion qualifies as "functional ankylosis." See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *23 (Vet. App. Apr. 16, 2021). 4. Adjudicate the issue of entitlement to a TDIU rating. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.