Citation Nr: 22041009 Decision Date: 07/18/22 Archive Date: 07/18/22 DOCKET NO. 19-33 981 DATE: July 18, 2022 ORDER New and material evidence has been submitted, and the claim of entitlement to service connection for a right shoulder condition is reopened. New and material evidence has been submitted, and the claim of entitlement to service connection for posttraumatic stress disorder is reopened. REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to an acquired psychiatric condition, to include PTSD, is remanded. FINDINGS OF FACT 1. In a June 2009 rating decision, the regional office (RO) denied the Veteran's service-connection claim for a right shoulder condition. The Veteran initiated but did not perfect an appeal. 2. Since the June 2009 rating decision denying the Veteran's service-connection claim for a right shoulder condition, new evidence has been associated with the claims file that raises a reasonable possibility of substantiating the claim. 3. In a June 2009 rating decision, the regional office (RO) denied the Veteran's service-connection claim for PTSD. The Veteran initiated, but did not perfect an appeal. 4. Since the June 2009 rating decision denying the Veteran's service-connection claim for PTSD, new evidence has been associated with the claims file that raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for a right shoulder condition are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the claim for service connection for PTSD are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1974 to November 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision. In February 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. New and Material Evidence In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means 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 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran's service-connection claim for a right shoulder condition and for PTSD in a June 2009 rating decision. The Veteran initiated, but did not perfect an appeal. The Veteran filed applications to reopen service-connection claims for a right shoulder condition and PTSD in November 2016. Evidence received since the June 2009 rating decision includes buddy statements and hearing testimony before the Board, where the Veteran offered more detail about events that occurred during service, and the symptoms that he has experienced during service with respect to his right shoulder condition and PTSD. The evidence is new, in that it was not of record at the time of the June 2009 denial. It is material, in that it is not cumulative or redundant of evidence already of record and raises a reasonable possibility of substantiating the claim for service connection on the merits. Accordingly, the claims for service connection for right shoulder condition and PTSD are reopened. The Board notes that the evidence of record contains reference to several potential psychiatric diagnoses. As such, the Board will consider whether service connection can be awarded for any acquired psychiatric disability, as per the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has expanded and recharacterized the issue as written above. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder condition is remanded. 2. Entitlement to service connection for a left shoulder condition is remanded. The Veteran contends that his bilateral shoulder condition is related to service. During his February 2021 hearing, the Veteran testified that he started having problems with his right shoulder after carrying heavy backpacks while doing hikes for the first couple weeks of training, and then he could not do them anymore. He testified that he went to the doctor several times, but that he then had to start riding in the Jeep with his drill sergeant. He further testified that he had fallen off a tank while in service. He testified that he had problems with his right shoulder when sleeping at night, and that he has had problems with both his shoulders, including pain, since service. See February 2021 hearing transcript. The Veteran's service treatment records reflect complaints of pain in the left scapula area. See February 1974 service treatment records. Additionally, VA treatment records include x-rays showing mild degenerative joint disease (DJD) of the left acromioclavicular (AC) joint; complaints of left shoulder pain; and a stable cortically based sclerotic lesion along the lateral margin of the proximal humeral shaft of the right shoulder. See March 2013 and May 2019 VA treatment records. The Veteran was scheduled for a VA examination for his claimed condition in September 2019. The record reflects that he failed to report to the September 2019 VA examination. Subsequently, during his February 2021 hearing, the Veteran testified that he thought he called back to make an appointment, and that he was not able to attend the examination because of his bad mental health. See February 2021 hearing transcript. The Board finds that the Veteran has presented good cause for failing to attend his examination and will remand for the scheduling of a new examination. Indeed, the Board cannot make a fully-informed decision on the issue of the Veteran's claimed bilateral shoulder disorders because no examiner has opined regarding the nature, etiology, or current state of the Veteran's bilateral shoulder disorders. Entitlement to an acquired psychiatric condition, to include PTSD, is remanded. The Veteran contends that he has mental health trouble that began during service and that it has continued ever since service. He testified that someone put him in a box for three days at Fort Dix; he was in a room, and they took his belt and shoestrings for three days. He testified that he missed port call and was handcuffed and put on a plane to Germany. He testified that, while in Germany, he saw several service members killed, including an American service member who had been hanged by American soldiers, and another American service member who was killed and put in a barrel. He testified that he saw several teenagers killed who were trying to cross the Berlin wall, and that he also saw race riots in Germany. He testified that his mental health has been the bigger issue for him and that it has taken precedence over getting treatment for his shoulders, but that he has received intermittent treatment since service. He testified that he has a hard time remembering things and also that he tried to commit suicide after service. See February 2021 hearing transcript. A review of the Veteran's VA treatment records reveals various diagnoses including major depressive disorder (MDD) with psychosis and PTSD. See December 2012, November 2013, and January 2014 VA treatment records. To date, the Veteran has not been afforded an examination to address the nature and etiology of his acquired psychiatric disorders. As the record reflects various diagnoses of psychiatric disorders and there is an indication of a relationship to service, the Veteran should be afforded an examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Afford the Veteran an examination to address the nature and etiology of his claimed bilateral shoulder disorders. Following review of the electronic claims file, and after taking a history from the Veteran as to the progression of the disabilities, the examiner is asked to address the following: a) Identify all bilateral shoulder disorders present at any point pertinent to the appeal. In doing so, the examiner should note that functional loss due to pain is considered a disability for VA purposes, even in the absence of a diagnosis. b) For each disability identified, is it at least as likely as not (approximately 50 percent probability) that the disorder had onset in, or is otherwise related to the Veteran's service? Consider the Veteran's assertions that his bilateral shoulder disorders are related to wear and tear during service due to physical training, including carrying heavy objects during hikes, as well as to falling off a tank during service. All opinions should be supported by a medical explanation or rationale. 3. Attempt to corroborate the Veteran's in-service stressors as described during the February 2021 videoconference hearing, and based on details outlined in his most recent December 2016 and March 2017 stressor statements. If more details are needed, contact the Veteran to request the information. All efforts to corroborate stressors should be documented in the claims file. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, including MDD with psychosis and PTSD. Following review of the electronic claims file, and after taking a history as to the progression of the disability from the Veteran, the examiner is asked to address the following: a) Identify all acquired psychiatric disorders, including MDD with psychosis and PTSD, present at any point pertinent to the appeal. If PTSD is diagnosed, the examiner should make clear the stressors upon which the diagnosis is based. b) For each disorder identified, is it at least as likely as not (approximately 50 percent probability) that the disorder had onset in, or is otherwise related to the Veteran's service? c) If a psychosis first manifested within one year of discharge, this should be made clear. All opinions should be supported by a medical explanation or rationale. 5. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.