Citation Nr: 18154204
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-25 661
DATE:	November 29, 2018
ORDER
The request to reopen the finally disallowed claim of entitlement to service connection for a right shoulder injury is granted.
Entitlement to service connection for a right shoulder injury is denied.
FINDINGS OF FACT
1. In an August 1994 rating decision, the RO denied the claim for entitlement to service connection for a right shoulder injury.  No timely appeal to the Board was received by VA, nor was any new and material evidence submitted within the applicable appeal period.
2. Additional evidence received since the RO’s August 1994 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim for entitlement to service connection for a right shoulder injury and raises a reasonable possibility of substantiating the claim.
3. The preponderance of the evidence is against finding that the Veteran has a right shoulder injury due to his service.
CONCLUSIONS OF LAW
1. The August 1994 rating decision is final as to the claim for entitlement to service connection for a right shoulder injury.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103.
2. New and material evidence has been presented to reopen the claim for entitlement to service connection for a right shoulder injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The criteria for service connection for a right shoulder injury are not met.  38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1991 to May 1994.
This case comes before the Board of Veterans’ Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran submitted a notice of disagreement in July 2012 and a statement of the case was issued in July 2015.
In his July 2015 VA Form 9, the Veteran indicated that he wanted a video hearing before the Board.  The record shows that a Board hearing was scheduled for October 2018. However, the Veteran did not appear for the Board hearing. As the Veteran has not requested to reschedule the Board hearing, the request for a hearing is considered withdrawn, and the Board will proceed accordingly.
The issue of entitlement to service connection for a right shoulder injury was previously denied in August 1994.  In June 2012, the RO confirmed the previous denial of the claim, stating that the new evidence did not support a change in the prior decision.  
Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim with respect to this issue.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).
New and Material Evidence
In general, RO rating decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.  If a claim for entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108.  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(a).
VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue, if it is in the nature of a statement or other assertion, or it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim.  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim.
1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right shoulder injury
In May 1994, the Veteran filed a claim for entitlement to service connection for a right shoulder injury, which the RO denied in an August 1994 decision on the basis that the condition was not shown on the last examination and is considered to be acute and transitory.  The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision.  The August 1994 rating decision therefore became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
Relevant evidence of record at the time of the RO’s August 1994 rating decision included the Veteran’s service treatment records and post-service private and VA treatment records.  
In January 2012, the Veteran requested to reopen his claim for entitlement to service connection for a right shoulder injury.  The evidence received since August 1994 includes private treatment records showing a diagnosis for right rotator cuff tear, VA treatment records, and a VA examination including a nexus opinion.  The evidence obtained since the last final denial is new and material because it bears directly on the current diagnosis and nexus elements and provides the Veteran an avenue to establish service connection for a right shoulder condition.  The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim.  Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
Accordingly, the claim for entitlement to service connection for a right shoulder condition is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
Service Connection
 Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §1110; 38 C.F.R. § 3.303 (a). To prevail on the issue of service connection, there must competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).
It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102.
The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).
Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).
2. Entitlement to service connection for a right shoulder injury
The Veteran contends that his right shoulder condition is related to an injury he sustained while in service. 
The Veteran’s service treatment records show that he complained of right shoulder pain in July 1991 and was assessed with muscle strain and overuse syndrome.  In June 1993, the Veteran was injured while wrestling and was assessed with pectoralis major evulsion and elbow pain.  The radiologic report indicated that there was no fracture, dislocation, or destructive lesions seen.  The Veteran’s separation examination in March 1994 showed “normal” results for “upper extremities.”
The Veteran’s post service treatment records include a VA orthopedic examination from June 1994 where the VA examiner noted no pathology found in the right shoulder.
Private treatment records from February 2011 show a diagnosis for right rotator cuff tear.
The Veteran was most recently provided with a VA shoulder and arm conditions examination in September 2014.  The VA examiner diagnosed the Veteran with right shoulder pain and opined that the condition was less likely than not incurred in service.  He provided the rationale that the Veteran had service records showing shoulder muscle strain and overuse, but there was no post-service follow up until approximately 2011.  The Veteran was noted to presently be in construction with awkward shoulder positions.  The examiner added that strain and overuse duration is not 20 years.
Upon review of the foregoing evidence, the Board concludes that the Veteran is not entitled to service connection for a right shoulder injury.
As an initial matter, the Board notes that the Veteran has been diagnosed with a right rotator cuff tear and right shoulder pain. As such, the Board finds that the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the issue turns upon whether there is evidence of an event, injury, or disease in service. If so, evidence of a nexus between the claimed in-service disease or injury and the present disability is required for the establishment of service connection.
The Board finds the September 2014 VA medical opinion to be highly probative in this case. The VA examiner opined that the Veteran’s right shoulder condition is less likely than not related to his service. The VA examiner thoroughly reviewed the Veteran’s record and provided an adequate rationale to his conclusion.  Additionally, the examiner attributed the Veteran’s right shoulder condition to his work in construction.
While the Board is sympathetic to the Veteran’s claim, considering all the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran’s right shoulder injury and his military service. Accordingly, the Board finds that the claim of entitlement to service connection for a right shoulder injury must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. §5107 (b); 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Morrad, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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