Citation Nr: 22019946 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 19-32 559A DATE: April 3, 2022 ORDER New and material evidence having been received, the claim for service connection for a bilateral shoulder condition is reopened. REMANDED Entitlement to service connection for a bilateral shoulder disorder to include as secondary to service connected seizure disorder is remanded. FINDINGS OF FACT 1. In a November 2011 rating decision, the Regional Office (RO) denied the claim of entitlement to service connection for a bilateral shoulder condition; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the November 2011 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral shoulder condition. CONCLUSION OF LAW New and material evidence has been received and the claim for service connection for a bilateral shoulder condition is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1980 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. No additional evidence has been received since the hearing. Applicable Statutes and Regulations A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 of VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the Board concludes that the Veteran has submitted such evidence to reopen that claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. New and material evidence having been received, the claim for service connection for a bilateral shoulder condition is reopened. The Veteran's claim for service connection for a bilateral shoulder condition was originally denied in a November 2011 rating decision. Specifically, the rating decision found that the record did not demonstrate an ongoing shoulder pathology or treatment. As a result, his claim was denied as no chronic condition subject to service connection had been found. Evidence considered in the November 2011 rating decision included service treatment records and post-service VA treatment records. In November 2011, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until June 2015, when VA received his petition to reopen such claim. Therefore, the November 2011 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received prior to the expiration of the appeal period stemming from the November 2011 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The pertinent evidence received since the November 2011 rating decision includes updated VA treatment records reflect ongoing treatment for shoulders and the Veteran's October 2021 Board hearing testimony describing his symptoms. This evidence is new and material as it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral shoulder condition. This new evidence raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral shoulder disorder to include as secondary to service connected seizure disorder is remanded. The Veteran contends that his bilateral shoulder disorder is the result of his service connected seizure disorder. Specifically, the Veteran has asserted that he suffered shoulder dislocation during seizure episodes. The Veteran further affirmed this assertion at his Board Hearing in October 2021. See Hearing Transcript - October 14, 2021. Service treatment records reflect treatment for left shoulder tenosynovitis in March 1982. The service treatment records are silent for any complaints, treatments, or diagnoses relating to the right shoulder. Post-service treatment records reflect the first report of bilateral shoulder pathology in 2009. Ongoing treatment for bilateral shoulder is well documented. The Veteran was provided VA opinion in September 2017. The examiner noted degenerative arthritis in both shoulders, originally diagnosed in 2010. The examiner opined that it was less likely than not that the Veteran's shoulder conditions were caused by his service connected seizure disorder. Regrettably, the Board finds that additional delay is necessary as the September 2017 VA examination is inadequate. The examiner did not provide an opinion regarding the possible aggravation of the Veteran's bilateral shoulder disorders by his service connected seizure disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Further, the examiner did not fully address the Veteran's lay contention that his shoulders would "pop out" during his seizure episodes, resulting in shoulder injury. Instead, the examiner relied on the absence of contemporaneous medical records to set aside the Veteran's lay assertions. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (a medical opinion which relies on the absence of contemporaneous medical evidence and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate). The Veteran as a lay person is competent to provide testimony regarding the symptoms she has experienced. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, in light of the above, the Board remands this matter to allow for an adequate examination and addendum opinion to be obtained. This addendum opinion should provide an adequate rationale that properly addresses the lay assertions of record and the question of aggravation. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of the outstanding records, obtain an addendum etiology opinion regarding the Veteran's bilateral shoulder disorder. The examiner should review the claims file and provide an addendum opinion. The need for further physical examination is left to the discretion of the examiner. The examiner should answer the following questions: (A) Is it at least as likely as not (50 percent or better probability) that the Veteran's bilateral shoulder disorder was caused by his service or had its onset during service? The examiner should specifically address in-service treatment for left shoulder tenosynovitis in March 1982. (B) Is it at least as likely as not (50 percent or better probability) that the Veteran's bilateral shoulder disorder was aggravated by his service connected seizure disorder? The examiner should particularly consider the Veteran's lay statements of shoulder dislocation during a seizure episode. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.