Citation Nr: 22019774 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 18-14 844 DATE: April 3, 2022 ORDER New material evidence having been received, the request to reopen the claim for left shoulder disability is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT Since the last final rating decision in July 1977, new and material evidence has been submitted to reopen a claim for service connection for a left shoulder disability. CONCLUSION OF LAW The criteria for reopening the service connection claim for a left shoulder disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to May 1971 in the United States Marine Corps. He testified at an October 2021 hearing before the undersigned; a copy of the transcript is associated with the record. The Veteran included the left shoulder disability on a VA Form 20-0995, Supplemental Claim under the Appeals Modernization Act (AMA) review system, submitted in response to an October 2020 supplemental statement of the case (SSOC) that addressed other issues. Despite the Agency of Original Jurisdiction's (AOJ) adjudication of the claim in a December 2020 rating decision, the appeal remains before the Board under the legacy review system. The AMA applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. A Legacy appeal is one based on a decision issued prior to the effective date of the AMA. A Veteran may, under certain circumstances, opt to elect consideration of a Legacy appeal under the AMA provisions. The Veteran perfected the appeal under the legacy system in March 2018, prior to the effective date of the AMA, and the claim is not eligible for opt-in to the AMA. See 38 C.F.R. § 3.2400 (c)(2). Entitlement to service connection for left shoulder disability. The Veteran's initial claim of service connection was denied in an October 1977 rating decision because there was no evidence that the Veteran had a left shoulder injury during active-duty service. The Veteran did not initiate an appeal or submit any additional evidence within a year of that decision, making the October 1977 rating decision final. Evidence added to the record since the October 1977 rating decision includes post-service treatment records, VA examination, and multiple lay statements to include sworn testimony before the undersigned. The evidence is "new" in that it had not been previously submitted and it is "material" because it relates to an unestablished fact necessary to substantiate the claim. The October 1977 denial was based on the finding that was no evidence that he had a left shoulder injury during active-duty service. Subsequent denials were based on a lack of evidence of a "persistent" left shoulder disability in service. The new evidence includes the Veteran's treatment records and VA examination providing updated diagnosis for the left shoulder and sworn testimony from the Veteran regarding in-service hospital treatment, ongoing symptoms following separation from service, and post-service hospital treatment. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claims is addressed in the remand section below. REASONS FOR REMAND Entitlement to service connection for left shoulder disability is remanded. The Veteran testified during his October 2021 hearing that he was hospitalized for his left shoulder during service. He also identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. Specifically, the Veteran testified that he was treated for a left shoulder injury in-service at the "Mainside Hospital" at Camp Pendelton and recieived post-service treatment for his left shoulder in the University of Texas medical system. After any outstanding records are obtained, the Veteran should be afforded a VA examination that addresses the likely etiology of his left shoulder disability. The matters are REMANDED for the following action: 1. Take all appropriate action to obtain records of any inpatient treatment at Camp Pendleton Naval Hospital between October 1969 and May 1971. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any University of Texas Medical Institutions. Make two requests for the authorized records from any identified facility unless it is clear after the first request that a second request would be futile. 3. After completion of the above, schedule the Veteran for an examination with an appropriate clinician on likely etiology of the left shoulder disability. Copies of all pertinent records must be made available to the examiner for review. The examiner should review the record and obtain a history from the Veteran. Based on the review of the record and history provided by the Veteran, the examiner must answer the following: Is it at least as likely as not that any diagnosed left shoulder disability is related to the Veteran's service, to include a left shoulder football injury? The examiner must address any in-service or post-service hospital treatment records obtained the Veteran's competent testimony regarding continuity of symptoms since his in-service injury. 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 P.S. McLeod 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.