Citation Nr: 22017732 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 19-18 249 DATE: March 26, 2022 ORDER New and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for right shoulder disability. REMANDED Entitlement to service connection for right shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran failed to perfect an appeal of a March 2012 rating decision that denied service connection for right shoulder disability. 2. Evidence submitted since the March 2012 rating decision is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for right shoulder disability CONCLUSION OF LAW The criteria for reopening the claim for service connection for right shoulder disability have been met. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1976 to August 1976. This matter comes before the Board from an April 2018 rating decision. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in March 2021. The transcript is in the record. 1. New and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a right shoulder disability Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for right shoulder disability was initially denied in an April 1980 rating decision. The RO determined that there was no evidence linking any current disability of the right shoulder to the Veteran's active service. The Veteran did not appeal that decision. Petitions to reopen the claim for service connection for right shoulder disability were denied in November 1994 and April 2002. More recently, as part of March 2012 petition to reopen, the RO issued a decision in May 2012 that reopened the claim but continued to deny service connection on its merits. The RO found that the evidence failed to establish that a right shoulder had its initial onset in service or was otherwise etiologically related to the Veteran's active service or service connection disability. The Veteran initiated an appeal with respect to the May 2012 decision by filing a notice of disagreement in April 2013. A statement of the case was (SOC) provided to the Veteran on May 14, 2015. However, as the Veteran did not submit a substantive appeal within the applicable time frame, i.e., 60-days from the date of the SOC, the denial of the claim became final. The Veteran filed a request to reopen in his claim for service connection for right shoulder disability in July 2018. In relation thereto, and evidence received since the May 2015 SOC, the Veteran submitted a May 2018 opinion letter from Dr. R.R., who indicated the Veteran's in-service shoulder injury, post-service surgery, and current shoulder disability were related and constitute a sequence of events which have culminated in the Veteran's disability. The evidence is neither cumulative or redundant and raises the reasonable possibility of substantiating the Veteran's claim. The claim for entitlement to service connection for right shoulder disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that he injured his shoulder on the monkey bars during training and that he sought treatment for this shoulder injury in-service. Service treatment records document the Veteran's complaint of right shoulder pain and the sensation of popping. Within a year of separation from service, the Veteran underwent surgery on the same shoulder that was injured in-service. The May 2018 opinion from Dr. R.R. carries limited probative value. Dr. R.R. indicated that the Veteran had injured his right shoulder (dislocation) in service and expressed the belief rotator cuff surgery conducted less than six months after service was the result of that injury. He remarked that it appeared that the surgery was done well as the Veteran did not experience any dislocations after that time. However, Dr. R.R. only indicated that it was possible ("may have") that the Veteran's current osteoarthrosis of the right shoulder was the result of the surgery performed in 1977 or his active service injury. The Veteran was afforded a VA examination in May 2012. The examiner acknowledged the service treatment records documenting right shoulder complaints as well as the report of the right shoulder surgery conducted in 1971. However, with little explanation, the examiner determined that the Veteran's current right shoulder problems, which included severe degenerative joint disease of the AC joint, was the result of age and/or a 1994 job-related injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The examiner also failed fully address the Veteran's belief that all the shoulder issues after service are a continuation of the in-service injury. A remand is necessary to cure these defects. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic right shoulder disability. After reviewing the claims file and examining the Veteran, the examiner should: a. Identify/diagnose any right shoulder disorder that presently exists or that has existed during the appeal period. b. For each identified right shoulder disorder, state opine whether it is at least as likely as not, or an approximate balance, that the right shoulder disability had its onset in service or is otherwise etiologically related to his active service. c. The examiner should discuss the likelihood of whether the described in-service right shoulder injury resulted in the Veteran's 1977 surgery and whether any subsequent shoulder disorder is the result of the in-service injury or that the 1977 surgery. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.