Citation Nr: 22016114 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 20-29 654 DATE: March 21, 2022 ORDER New and material evidence has been received to reopen the claim of service connection for a right shoulder disability. New and material evidence has been received to reopen the claim of service connection for a neck disability. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2015 rating decision, the RO denied service connection for a right shoulder disability. 2. The evidence received since the April 2015 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a right shoulder disability. 3. In an unappealed April 2015 rating decision, the RO denied service connection for a neck disability. 4. The evidence received since the April 2015 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a neck disability. CONCLUSIONS OF LAW 1. The April 2015 rating decision denying service connection for a right shoulder disability is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The April 2015 rating decision denying service connection for a neck disability is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1962 to September 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board in pertinent part denied reopening the Veteran's previously denied claims of service connection for right shoulder and neck disabilities. The Veteran appealed the Board's denial of these issues to the United States Court of Appeals for Veterans Claims (Court). In November 2021, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). An Order of the Court dated November 2021 granted the motion, vacated in part the Board's December 2020 decision, and remanded the case to the Board. The parties to the JMPR agreed that the Board erred because it did not provide an adequate statement of reasons or bases. Specifically, the Board did not sufficiently consider whether lay statements about the Veteran's pain and occupational impairment reflected the presence of current disabilities sufficient to reopen the Veteran's right shoulder and neck disabilities. Accordingly, remand was warranted for consideration of such. New and Material Evidence Right shoulder and neck disabilities In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2021). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "Material" evidence means 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) (2021). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). The RO denied service connection for right shoulder and neck disabilities in an April 2015 rating decision because there was no evidence of current right shoulder or neck disabilities. The Veteran did not appeal the denial of the April 2015 rating decision and new and material evidence was not associated with the claims folder within one year of the rating decision. The decision therefore became final. At the time of the prior final rating decision in April 2015, the record in pertinent part included the Veteran's service treatment records and the Veteran's statements. The Veteran's service treatment records were absent complaints of or treatment for right shoulder or neck disabilities. The Veteran reported on his December 2014 claim for VA benefits that he had right shoulder and neck disabilities due to being thrown from a truck in service at Fort Leonard Wood, Missouri. As the April 2015 rating decision is final, new and material evidence is therefore required to reopen the claims. In reviewing the evidence added to the claims folder since the April 2015 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claims. Specifically, the Veteran and his wife submitted statements indicating functional impairment of the Veteran's right shoulder and neck that affected the Veteran's earning capacity. See statements from the Veteran and his wife received by VA in June 2016. As indicated above, the Veteran's previous claims were denied because there was no evidence of current right shoulder and neck disabilities. As the new evidence indicates current disabilities, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claims. As new and material evidence has been received, the claims for service connection for right shoulder and neck disabilities are reopened. REASONS FOR REMAND Service connection for right shoulder and neck disabilities The Veteran contends that he has right shoulder and neck disabilities that are related to service, specifically due to a motor vehicle accident at Fort Leonard Wood, Missouri in 1964. See, e.g., a statement from the Veteran received by VA in June 2016. The Board notes that the Veteran's available service treatment records are absent complaints of or treatment for right shoulder or neck disabilities. However, the Board notes that the Veteran is competent to attest to injuring his right shoulder and neck in a motor vehicle accident. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Veteran has reported current right shoulder and neck impairment as well as longstanding symptoms. See the Veteran's statement received by VA in June 2016. There is no medical opinion of record as to whether the Veteran's present claimed right shoulder and neck disabilities are due to service. VA examinations and corresponding medical opinions are necessary to properly adjudicate these matters. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that, as discussed above, the Veteran contends that he was injured in service from a motor vehicle accident in Fort Leonard Wood, Missouri in 1964. He has further reported that he received treatment at the hospital in Fort Leonard Wood at that time. The Board observes that there is a clinical record dated November 1964 from the Fort Leonard Wood medical facility for authorization of anesthesia and for performance of operations and other procedures. However, no other medical records from this facility are of record. Therefore, the Board finds that on remand, records from this medical facility should be obtained and associated with the claims folder. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records dated 1964 from the medical facility at Fort Leonard Wood, Missouri, to include hospital records pertaining to the Veteran's claimed motor vehicle accident injury. If any requested service treatment records are unavailable, notify the Veteran of such and of alternate sources of evidence that can supplement the available records. Document in the file that such records are unavailable. 2. Thereafter, schedule the Veteran for a VA examination to determine the etiology of his claimed right shoulder and neck disabilities. The examiner is requested to review all pertinent records associated with the claims folder, including the Veteran's service treatment records, post-service medical records, and lay statements. Based on examination of the Veteran and review of the Veteran's claims folder, the examiner is asked to opine as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right shoulder disability that is related to service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a neck disability that is related to service. Provide a comprehensive rationale for every opinion. W. R. Stephens Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.