Citation Nr: 22014605 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-17 648 DATE: March 14, 2022 ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis. 2. Entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis. 3. Entitlement to service connection for right shoulder arthritis. ORDER Having determined that new and material evidence has been received, the claim for entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis is reopened; to this extent, the appeal is granted. REMANDED Entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis is remanded. Entitlement to service connection for right shoulder arthritis is remanded. FINDINGS OF FACT 1. In a September 2016 rating decision, the RO denied the Veteran's claim of entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis. The Veteran did not immediately appeal this rating decision, and thus it became final. 2. The evidence received since the September 2016 rating decision relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for right shoulder impingement syndrome with rotator cuff tendonitis. CONCLUSIONS OF LAW 1. The September 2016 rating decision denying entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received and the claim of entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 2006 to February 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was denied entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis in a rating decision from September 2016. The Veteran did not file a timely Notice of Disagreement (NOD) and the rating decision became final. The Veteran then filed another claim for entitlement to service connection for right shoulder impingement syndrome, which was again denied in July 2018. Prior to that decision becoming final, the Veteran filed a third claim for entitlement to service connection for right shoulder impingement syndrome, in addition to entitlement to service connection for right shoulder arthritis. Both claims were denied in a rating decision from September 2018. The Veteran filed a timely NOD in October 2018, and he was issued a statement of the case (SOC) in November 2018. The Veteran filed a VA Form 9 in June 2019, in which he requested a Board hearing. The Board recognizes that, although the VA Form 9 was filed over 60 days from the SOC, it was filed within the one-year period from the date of the most recent rating decision, and thus it is considered timely. The Veteran's claims were certified to the Board in May 2020. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in November 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. As an initial matter, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim of entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis. That is, the Board has jurisdictional responsibility to consider whether the service connection claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board must evaluate the evidence received since the most recent final rating decision. For the purposes determining whether or not new and material evidence has been received, the Board notes the most recent final rating decision to be that from September 2016. See 38 C.F.R. § 3.156. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). As noted above, the Veteran's claim for entitlement to service connection for a back disability was initially denied in a September 2016 rating decision. That rating decision denied the Veteran's claim because the RO did not find a link between the right shoulder impingement syndrome and the Veteran's military service. The Veteran was given a Board hearing before the undersigned in November 2021. During the hearing, the Veteran testified that he was deployed during his second tour to Kirkuk, Iraq, and he was moving "a lot of heavy equipment," which included "unloading and reloading Conex boxes doing inventory." During one of these occasions, he "felt something in my shoulder kind of pop and then it was just really sore," and that it has been an "ongoing nagging injury ever since." The Veteran testified that he went to sick hall following the injury, and that he was given "pain medication, muscle relaxers and things of that nature." He also testified that he was briefly given some "physical therapy," but later clarified that he was treated "on site," and he is not sure if anything was written into his service treatment records. Again, the original rating decision denied the Veteran's claim based on the lack of a link between the Veteran's shoulder disability and his active-duty service. The Veteran's credible testimony speaks directly to that, providing additional details of how he believed the in-service injury happened. He also spoke to treatment that he received in field, and that it has continued to cause him shoulder pain since that service. The Board finds that the evidence provided is new, insofar as it was not previously submitted to the VA. The evidence is also material, in that it goes to an unestablished fact necessary to substantiate the claim for entitlement to service connection, in that he is testifying directly towards a causal link between his current disability and his active-duty service. 38 C.F.R. § 3.156 (a). Affording the Veteran the benefit of reasonable doubt, the Board finds that, under the circumstances of this case, rejecting the Veteran's request to reopen his previously denied service connection claim would be in conflict with the principles explained in Justus and Duran. For these reasons, the claim for entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for right shoulder impingement syndrome with rotator cuff tendonitis; and entitlement to service connection for right shoulder arthritis are each remanded. The Veteran has claimed that his right shoulder impingement syndrome with rotator cuff tendonitis, and his right shoulder arthritis, are each due to his active-duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). The Board incorporates its discussion of the Veteran's November 2021 hearing testimony from above by reference. The Veteran is competent to report the symptoms he experiences, such as those associated with his right shoulder. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the available medical evidence, the Veteran's service-treatment records indicate that he was seen for back pain in June 2011. During this treatment visit, the Veteran reported pain "in upper back and shoulder and lower back." The treatment notes also state that the Veteran was given pain medicine and muscle relaxers. The Veteran was given a VA examination in August 2016. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed a diagnosis of right shoulder impingement syndrome, with rotator cuff tendonitis. They also confirmed a current diagnosis of acromioclavicular joint osteoarthritis. The examiner noted the Veteran's lay statements, including that "he was doing a lot of training and carrying of heavy equipment and ruck sacks. He was seen in Iraq but had no treatment or diagnosis that he recalls." Following clinical testing, the examiner stated that the Veteran's right shoulder disabilities were not due to his active-duty service. The rationale stated that there was limited medical evidence of any shoulder complaints in the available medical records, and "there is no evidence of any shoulder complaints on the medical self-assessment at discharge." They then stated that "it would require this examiner to use mere speculation as to drawing any conclusion as to service connection related to the right shoulder." Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the August 2016 VA examination inadequate. To begin, the rationale provided was largely based on the lack of in-service treatment for a shoulder disability, and the lack of shoulder-related complaints on discharge. See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied solely on the lack of evidence in service treatment records and ignored the Veteran's lay statements to provide negative opinion). The Board also notes that the examiner stated that they could not provide an opinion without resorting to mere speculation. The Board is reminded that when an examiner concludes that an opinion cannot be rendered without resorting to mere speculation, it must be clear that the inability to opine on questions of diagnosis and etiology is not the initial impression of an uninformed examiner, but is an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). If an opinion cannot be rendered without resorting to mere speculation, that conclusion is insufficient if the examiner does not explain the basis for that opinion or the basis is not otherwise apparent from the record. Id. In this case, the examiner stated that the opinion could not be offered without resorting to speculation, yet they did not explain the basis for that opinion. Finally, the Board also recognizes that the Veteran has provided competent testimony in November 2021 regarding his in-service shoulder injury, and that the August 2016 VA examiner did not have the benefit of reviewing that testimony. As such, the Board finds the August 2016 VA examination inadequate. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be afforded another VA examination, whereby his credible testimony may be considered. The matters are REMANDED for the following action: 1. Obtain all VA treatment records relevant to the Veteran's right shoulder disabilities. Notify the Veteran that if he has further private treatment records relevant to these disabilities, he should submit them or identify them sufficiently so that the RO can obtain them with the appropriate authorization. 2. Following Step 1, schedule the Veteran for a VA examination with an appropriate clinician, to determine the nature and etiology of the Veteran's right shoulder disabilities. The claims file must be made available and must be reviewed by the examiners. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: (a.) For both of the Veteran's confirmed right shoulder disabilities, is it at least as likely as not that the Veteran's disability was incurred in, or otherwise related, to his time on active service? An opinion is required for both the right shoulder impingement syndrome with rotator cuff tendonitis, as well as his right shoulder arthritis. In rendering this opinion, the examiner's attention is drawn to the Veteran's competent testimony that he injured his right shoulder while on active duty in Iraq, when he was moving heavy Conex boxes. He also testified that he was treated in field with medication and muscle relaxers, but that adequate treatment notes may have not been recorded. The clinician is also advised that the Veteran is competent to report his symptoms and history. Such reports by the Veteran must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.