Citation Nr: 22052887 Decision Date: 09/16/22 Archive Date: 09/16/22 DOCKET NO. 19-27 199 DATE: September 16, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened. Entitlement to service connection for a right shoulder disability is granted. FINDINGS OF FACT 1. In a January 2012 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim of entitlement to service connection for a right shoulder disability. He did not perfect a timely appeal of the decision nor was new and material evidence received within one year of notification of the decision. 2. In a September 2016 rating decision, the RO denied the Veteran's application to reopen the claim of service connection for a right shoulder disability. The Veteran submitted new and material evidence within a year of the rating decision and a January 2018 rating decision readjudicated and continued to deny the Veteran's right shoulder disability claim. He did not perfect a timely appeal of the decision nor was new and material evidence received within one year of notification of the decision. 3. The evidence received since the January 2018 rating decision includes evidence which relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a right shoulder disability and, if presumed credible, raises a reasonable possibility of substantiating that claim. 4. The evidence is in relative equipoise as to whether the Veteran's right shoulder disability is causally related to his active service. CONCLUSIONS OF LAW 1. The January 2018 rating decision denying the application to reopen the claim of entitlement to service connection for a right shoulder disability is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant reopening of the claim of service connection for a right shoulder disability. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the Army National Guard from May 1986 to August 1986, active duty from November 1988 to May 1993, and on ACDUTRA from May 2003 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued a previous denial of service connection for a right shoulder disability. The Veteran filed a notice of disagreement (NOD) in May 2018 and a statement of the case (SOC) was issued in September 2019. He perfected a timely appeal in September 2019. Although the RO reopened the Veteran's claim, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claim. In August 2022, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disability. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In a January 2012 rating decision, the RO denied the Veteran's original claim of entitlement to service connection for a right shoulder disability. As new and material evidence was not received within one year of the decision, nor did the Veteran appeal, the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Veteran again filed a claim of entitlement to service connection for a right shoulder disability in June 2016. A September 2016 rating decision declined to reopen the Veteran's claim. In July 2017, the Veteran submitted new and material evidence as to the claim; namely, a positive nexus opinion from Dr. J.S. A January 2018 rating decision readjudicated and denied the Veteran's claim. As new and material evidence was not received within one year of the January 2018 decision, nor did the Veteran appeal, the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in January 2018. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claim of service connection for a right shoulder disability. Relevant evidence received since the January 2018 decision includes VA and private treatment records documenting on-going complaints of right shoulder pain, a June 2018 VA examination and medical opinion, a May 2019 statement from the Veteran's spouse, as well as lay statements and personal testimony of the Veteran. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received sufficient to reopen the Veteran's previously denied claim of service connection for a right shoulder disability. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, at the August 2022 Board hearing, the Veteran provided testimony detailing the onset of his right shoulder symptoms during ACDUTRA service. He further described how these right shoulder symptoms persisted after military service and continued to the present day. See the Board hearing transcript, pgs. 3-5. This evidence relates to previously unestablished elements of nexus. Accordingly, when presumed credible, the evidence meets the standards for reopening under 3.156(a). See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade, supra. 2. Entitlement to service connection for a right shoulder disability. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this matter, the Veteran asserts entitlement to service connection for a right shoulder disability, which he claims developed during his ACDUTRA service and has continued to the present time. See, e.g., the Board hearing transcript dated August 2022. As indicated above, the Veteran's service personnel records document ACDUTRA service from May 1986 to August 1986, active duty service from November 1988 to May 1993, and ACDUTRA service from May 2003 to May 2004. The Veteran's service treatment records (STRs) show that he did not complain of right shoulder symptoms prior to his final period of ACDUTRA service. Notably, the February 1993 separation examination from active duty service documents a normal musculoskeletal examination, including as to the right shoulder. A Report of Medical History dated in March 2004 documents the Veteran's report of painful right shoulder. An examination dated in March 2004 noted the Veteran's right shoulder pain, which he was noted to have injured bench pressing. A March 2004 x-ray of the right shoulder was normal. In a December 2009 letter, U.G., M.D., reported that the Veteran was seen in September 2009 for right shoulder pain. Dr. U.G. noted that the Veteran reported injuring his right shoulder in the Army and has had pain since that time. Dr. U.G. indicated that the Veteran's injuries are service related, in his opinion. In a February 2010 statement, Mr. F.B. reported that he worked with the Veteran for 10 years and has witnessed the Veteran's symptoms. The Veteran was afforded a VA examination in September 2010 at which time the examiner noted the Veteran's report that "he was lifting weights and [felt] something and after this event the shoulder started with pain and range of motion limitation. Went to sick call and treated conservative[ly] and was given a profile to [not] do lifting or push-ups." The examiner noted a diagnosis of degenerative joint disease (DJD) of the right shoulder. In a March 2011 medical opinion, the VA examiner reported that the Veteran's right shoulder DJD is less likely as not caused by or a result of injury in service. The examiner stated that, in reviewing the claims file, "there is a note related to the right shoulder on a physical exam and there [are] two x-rays of right shoulder, one in 1989 and the other in 2004 in both x-rays were negative. After 2004, there is no evidence of documentation related to the right shoulder." The examiner continued, "[t]he complaint of right shoulder pain was in 2001 and the MRI was done in 2011." The examiner concluded, "[b]ased on the Veteran's doesn't have any evidence of shoulder pain or any complaints in the past six years, it is my medical opinion that the DJD right shoulder is less likely as not (less than 50/50 probability) caused by or a result of injury in service." In support of his claim, the Veteran submitted a June 2016 statement from J.S., M.D., who reported that the Veteran "was seen by me in clinic evaluation of right shoulder pain which began while he was working as a mechanic in service over 10 years ago. He said, since that time, he has had persistent problems with it, especially related to pain with overhead activities and lifting." Dr. J.S. noted, "[w]e treated him for shoulder impingement as well as biceps tendinitis and he is greatly improving at this point. While I did not treat him at the onset of his symptoms when he was in service, he does date them back to his active service and believes it is service-related." VA treatment records dated in September 2015 noted the Veteran's "[c]omplaints of right shoulder pain for years and [states] intermittent popping and most of pain to anterior AC joint." Magnetic resonance imaging (MRI) of the right shoulder revealed "[s]ubscapularis mild grade partial tear and AC joint advanced osteoarthritis. In a July 2017 statement, J.S., M.D., stated that he treated the Veteran for "right shoulder which began while he was working as a mechanic in the military over 10 years ago. He said that since that time he has had persistent problems with it, especially related to pain with overhead activities and lifting." Dr. J.S. noted, "[w]e treated him for shoulder impingement as well as biceps tendinitis and he has persistent symptoms again." Dr. J.S. explained, "[w]hile I did not treat him as the onset of his symptoms when [he] was in the military, he does date them back to his active duty service in the military and believes it is service related." Dr. J.S. concluded that the Veteran has had an MRI "showing a superior labral tear related to the biceps tendinitis symptoms. I believe this tear originated during his time in the military." VA treatment records dated in May 2018 revealed chronic right shoulder pain, which he relates to a 2002 injury while on active duty. The Veteran was afforded a VA examination in June 2018, which confirmed a diagnosis of degenerative arthritis of the right shoulder. In a separate June 2018 medical opinion, the examiner determined that the Veteran's "current right shoulder condition was less likely than not incurred in or caused by the Veteran's right shoulder condition during military service." The examiner explained that "[r]eview of the entire medical records of the Veteran showed notes related to the right shoulder with unremarkable physical shoulder exams, and there were two x-rays of right shoulder one in 1989 and the other in 2004, in both x-rays were negative." The examiner continued, "[a]fter 2004, there is no evidence of documentation related to the right shoulder condition. Then in 2011, a complaint of right shoulder pain with subsequent MRI was done." The examiner concluded, "[t]he Veteran didn't have any medical [complaints] of shoulder pain in a 6-7 year span (2004 to 2011) that showed no chronicity recurrence of right shoulder condition." In a May 2019 statement, the Veteran's spouse indicated that the Veteran experienced right shoulder pain dating from his separation from service. In written argument dated in May 2019, the Veteran explained that he did not have health insurance following his separation from service and therefore did not seek treatment for his right shoulder. He described continuing right shoulder symptomatology dating from his ACDUTRA service. At the August 2022 Board hearing, the Veteran testified that he injured his right shoulder in 2002 during a period of ACDUTRA service. See the Board hearing transcript, pgs. 3-4. He reported that his right shoulder continues to trouble him. Id. He noted that his treating physician, Dr. S. believes the Veteran's injury is due to his military service. Id. at pgs. 4-5. The Board recognizes that the Veteran has testified that his right shoulder injury was incurred in a period of ACDUTRA in 2002; however, as noted above, there is documentation of a right shoulder injury in 2004 during a period of ACDUTRA. Nevertheless, the Veteran has provided competent and credible evidence of continuity of symptomatology dating from his ACDUTRA service and continuing to the present day. See Jandreau v. Shinseki, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify"). Moreover, the Veteran's contentions of continuing symptomatology have been corroborated by the letters from Drs. U.G. and J.S., which document the Veteran's right shoulder symptoms dating from his ACDUTRA service and continuing to the present day. In fact, Dr. J.S. specifically indicated that, based upon his clinical treatment of the Veteran and consideration of his medical history, including his reported symptoms, he believed the Veteran's right shoulder disability was incurred during his ACDUTRA service. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the diagnosed right shoulder disability was incurred during the Veteran's ACDUTRA service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for a right shoulder disability to include DJD. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.