Citation Nr: 23050996 Decision Date: 09/14/23 Archive Date: 09/14/23 DOCKET NO. 20-04 764 DATE: September 14, 2023 ORDER New and material evidence having been received, the claim for service connection for a right shoulder disorder is reopened. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. FINDINGS OF FACT 1. In a December 2013 rating decision, the agency of original jurisdiction (AOJ) denied service connection for a right shoulder injury. The Veteran was notified of the decision that same month, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the December 2013 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim for service connection for a right shoulder disorder. CONCLUSIONS OF LAW 1. The December 2013 rating decision denying service connection for a right shoulder injury is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received since the December 2013 rating decision is new and material as to the claim for service connection for a right shoulder disorder, and the claim is reopened. 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 from February 1976 to February 1980. He had subsequent service in the United States Army Reserve, which included a period of service from January 1991 to August 1991 (ordered to active duty in support of Operation Desert Shield/Desert Storm). See DD 214s. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by AOJ, Board must determine whether new and material evidence has been received subsequent to an unappealed AOJ denial). In a December 2013 rating decision, the AOJ denied service connection for a right shoulder injury, finding that the Veteran did not have a current right shoulder diagnosis. The Veteran was notified of the decision that same month, but he did not appeal or submit new and material evidence within the one-year period thereafter. Therefore, the December 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. At the time of the December 2013 rating decision, the record included the Veteran's service treatment records, service personnel records, and a December 2013 VA examination report. The evidence received since the December 2013 rating decision includes an October 2018 right shoulder MRI report with a current right shoulder diagnosis. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). This evidence was not previously considered by the AOJ, relates to an unestablished fact necessary to substantiate the claim (a current diagnosis), and could reasonably substantiate the claim were it to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the Board finds that the evidence is both new and material, and the claim for service connection for a right shoulder injury is reopened. In the remand below, the Board has recharacterized the issue more broadly in light of the reopening. REASONS FOR REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the issue on appeal. Specifically, it appears that there may be outstanding non-VA treatment records, as detailed in the directives below. In addition, the Veteran's representative recently asserted that the service treatment records appear incomplete, including the separation examination report from the Veteran's first period of service. See January 2022 appellant brief (dated in January 2020). The Veteran has contended that he has current right shoulder problems as a result of injury during his period of active duty in 1991. See, e.g., April 2013 original compensation claim and December 2018 VA examination report. The record does contain the October 1979 separation examination report and corresponding report of medical history, along with additional service treatment records from the Veteran's initial active duty and later Army Reserve service. Nevertheless, on review, a request to the Veteran's Army Reserve units, as detailed in the directives below, is necessary to afford him all due consideration in this regard. The case is REMANDED for the following actions: 1. The AOJ should contact the Veteran's Army Reserve units related to his period of active duty in 1991 or any other appropriate unit or facility to attempt to locate any additional service records other than those received from the National Personnel Records Center. See Reserve Orders from September 1990 (Veteran reassigned to 400th General Supply Company; consistent with command listed on DD 214 and notations in service treatment records from that time period already in claims file), October 1991 (reassigned between units), April 1992 (reassigned to United States Army Reserve Control Group for Individual Ready Reserve (IRR) no show), and November 1992 (Control Group discharge). All attempts and responses should be documented in the claims file. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right shoulder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. See, e.g., August 2020 private treatment record (referencing earlier treatment provider appointment). The AOJ should also secure any outstanding VA treatment records. 3. The AOJ should ensure compliance with the preceding directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.