SHOULDER IMPAIRMENT OF

DELYVONNE M. WHITEHEAD · 2026 · Case ID: A26040648

MIXED

Summary

The veteran, who served from November 1978 to December 1992, had his claims for service connection for right and left shoulder disabilities readjudicated due to new and relevant evidence. The Board found that since the last denial in January 2014, the veteran had consistently reported chronic bilateral shoulder pain, with imaging showing degenerative changes and limited range of motion. Lay testimony from his son-in-law also indicated that military training, including heavy ruck marches, strained the shoulders. This evidence was deemed new and relevant, warranting readjudication. The Board also found a duty to assist error in failing to obtain a VA medical opinion for the shoulder conditions, remanding them for a new opinion to address the nature and etiology of the disorders, including consideration of the reported pain, degenerative changes, and potential functional impairment. The claim for service connection for a sleep disorder, including sleep apnea, was denied. This claim had been previously denied in 2005, 2010, and 2019. The Board found no new and relevant evidence was submitted since the August 2019 denial, as subsequent treatment records and examination reports were duplicative of existing information or irrelevant to the matters at issue. Medical opinions from August 2019 had already found sleep apnea less likely than not caused or aggravated by PTSD.

Rationale

New and relevant evidence submitted since prior denial; Treatment records show chronic pain and degenerative changes; Lay testimony supports in-service strain

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200810-103122

Full Decision Text

Citation Nr: A26040648
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 200810-103122
DATE: April 30, 2026

ORDER

New and relevant evidence having been received, the claim for service connection for a right shoulder disability may be readjudicated. The claim is granted to this extent only.

New and relevant evidence having been received, the claim for service connection for a left shoulder disability may be readjudicated. The claim is granted to this extent only.

New and relevant not having been received, the previously denied claim of entitlement to service connection for a sleep disorder, to include sleep apnea, is denied.

REMANDED

Entitlement to service connection for a right shoulder disability is remanded.

Entitlement to service connection for a left shoulder disability is remanded.

FINDINGS OF FACT

1. New and relevant evidence has been received, regarding the claims of entitlement to service connection for right and left shoulder disabilities, since the January 2014 rating decision.

2. An October 2005 final rating decision denied service connection for sleep impairment, because there was no evidence that the condition was incurred in or caused by service.

3. A June 2010 final rating decision denied entitlement to service connection for sleep impairment. It found that the Veteran had current sleep disorders of sleep impairment that was encompassed by his award of service connection for posttraumatic stress disorder (PTSD) and sleep apnea, for which no new and material evidence had been received to reopen the claim.

4. An August 2019 rating decision denied entitlement to service connection for sleep impairment, claimed as sleep apnea. It found that although the Veteran had a diagnosis of sleep apnea, the service treatment records did not show complaints or treatment of sleep apnea, and it did not show that the condition resulted from, or was aggravated by, service-connected disability.

5. The Veteran submitted a Supplemental Claim application for service connection for sleep apnea in March 2020.

6. Since the August 2019 rating decision, no evidence has been received that was not already part of the record or duplicative of evidence in the record, and which tends to prove or disprove any matter at issue regarding a sleep disorder.

CONCLUSIONS OF LAW

1. As new and relevant evidence has been received, the requirements to readjudicate the claim of entitlement to service connection for a right shoulder disability have been met. 38?U.S.C. §§?5108, 7105; 38?C.F.R. §§ 3.156, 3.2501.

2. As new and relevant evidence has been received, the requirements to readjudicate the claim of entitlement to service connection for a left shoulder disability have been met. 38?U.S.C. §§?5108, 7105; 38?C.F.R. §§ 3.156, 3.2501.

3. The requirements to readjudicate the claim of entitlement to service connection for a sleep disorder have not been met, and the claim remains denied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156(d), 3.2501.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1978 to December 1992. He passed away in March 2023. The Appellant is his surviving spouse.

This case comes to the Board of Veterans' Appeals (Board) from an April 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 7, 2025.

Therefore, the Board may only consider the evidence of record at the time of the April 2020 AOJ decision on appeal, as well as any evidence submitted by the Appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, she may
of the April 2020 AOJ decision on appeal, as well as any evidence submitted by the Appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, she may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to service connection for right and left shoulder disabilities, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

New and Relevant Evidence for Right and Left Shoulder Disabilities

A claim for service connection for a bilateral arm condition was first denied in a January 1994 rating decision because no chronic arm condition was shown during active duty or at the recent VA examination. In a January 2011 rating decision, service connection for bilateral upper extremity joint and muscle pain was denied. In a January 2014 rating decision, entitlement to service connection for right and left shoulder arthritis was denied. The claims were denied because the evidence of record failed to show that a disability had clearly been diagnosed. The Veteran did not perfect an appeal for any of these decisions, and they are final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103.

The Veteran then submitted a Supplemental Claim in March 2020. A Supplemental Claim under the Appeals Modernization Act must be accompanied by new and relevant evidence. 38?C.F.R. §?3.2501. A claimant may reopen a finally adjudicated claim by submitting new and relevant evidence, and VA will then readjudicate the claim taking into consideration all of the evidence of record. New evidence means existing evidence not previously submitted to agency decisionmakers. The term "relevant evidence" means evidence that tends to prove or disprove a matter in issue. Id.

At the time of the last prior denial in January 2014, the claims were denied because there was no current diagnosis of a right or left shoulder disorder. The VA treatment records since this time show that the Veteran reported having chronic right and left shoulder pain on multiple occasions.

In September 2015, he reported having right shoulder pain with cold weather. February 2020 imaging found early degenerative changes in the right AC joint. In October 2020, he reported having intermittent left shoulder pain with cold weather, using a seat belt, or lying on his shoulder. In March 2021, he reported having throbbing pain in his left shoulder for 1 day. His left shoulder had normal appearance, with good range of motion and no pain, but there was a mild tender AC joint. Imaging found arthritis changes, but no definite acute fracture. In April 2021, October 2021, April 2022, and November 2022 he was again found to have bilateral shoulder pain. In March 2023, he was noted to have limited range of motion in both shoulders. Additionally, at the January 2025 Board hearing, the Veteran's son-in-law testified that training in the military put a lot of strain on the body, especially the shoulders, and that the Veteran's training included long ruck marches with a lot of weight and pressure on the shoulders.

This is new evidence that had not previously been before VA adjudicators, and it is relevant, as it pertains to whether the Veteran had a current disability of the right and left shoulders, which was a previously unestablished element. This is therefore evidence which tends to prove the claims, and it is both new and relevant.

The Board therefore finds that new and relevant evidence has been received since the prior final disallowance of the claims for service connection for right and left shoulder disabilities. The claims warrant readjudication.

New and Relevant Evidence for Sleep Disorder
put a lot of strain on the body, especially the shoulders, and that the Veteran's training included long ruck marches with a lot of weight and pressure on the shoulders.

New and Relevant Evidence for Sleep Disorder

The Appellant also contends that the Veteran had a sleep disorder which was related to service or was secondary to his service-connected PTSD.

Claims for service connection for sleep impairment were previously denied in October 2005, June 2010, and August 2019. The October 2005 rating decision denied service connection for sleep impairment, because there was no evidence that the condition was incurred in or caused by service. The Veteran did not appeal this decision, and it is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103.

A June 2010 rating decision denied entitlement to service connection for sleep impairment. It found that the Veteran had current sleep disorders of sleep impairment that was encompassed by his award of service connection for PTSD, and sleep apnea, for which no new and material evidence had been received to reopen the claim. The Veteran did not appeal this decision, and it is also final. Id.

The Veteran next submitted a Supplemental Claim in June 2019, requesting service connection for sleep apnea, as secondary to PTSD. An August 2019 rating decision denied entitlement to service connection for sleep impairment, claimed as sleep apnea. It found that although the Veteran had a diagnosis of sleep apnea, the service treatment records did not show complaints or treatment of sleep apnea, and it did not show that the condition resulted from, or was aggravated by, service-connected disability.

The Veteran then again submitted a Supplemental Claim for service connection for sleep apnea as secondary to PTSD in March 2020.

A Supplemental Claim requires that new and relevant evidence be presented or secured for the claim to be readjudicated, taking into consideration all the evidence of record. 38 C.F.R. §§ 3.156(d), 3.2501. While the new and relevant evidence standard is deliberately broad, the Board does not find that new and relevant evidence has been received since the August 2019 rating decision which would allow for readjudication of the claim.

At the time of the August 2019 rating decision, the evidence included the Veteran's service treatment records and VA treatment records, which showed that he had been diagnosed with obstructive sleep apnea since 2008. They also showed that he had reported problems with sleeping through the night on multiple occasions, and that this was associated with his nightmares and PTSD. In November 2015, he was prescribed medication to help him sleep. At an April 2019 VA examination, the Veteran was found to have symptoms associated with PTSD that included chronic sleep disturbance, nightmares, and disturbed sleep. Medical opinions obtained in August 2019 had found that the Veteran's sleep apnea was less likely than not caused or aggravated by PTSD.

An August 2019 rating decision denied the claim because there was no evidence that sleep apnea was incurred in service or that it was caused or aggravated by a service-connected disability, such as PTSD. The Veteran did not submit any evidence along with his March 2020 Supplemental Claim, and while the Appellant has more recently submitted a large volume of VA and private treatment records, these records do not contain any non-duplicative evidence which relates to a matter at issue.

The medical evidence in the record at the time of the August 2019 decision already established that the Veteran had a diagnosis of sleep apnea and that he had difficulty sleeping at night due to PTSD. The treatment records that have been added since then are wholly duplicative of information already present in the claims file, and as such, they do not tend to prove or disprove any matter at issue, and they cannot be "new and relevant." See 38 C.F.R. § 3.2501.

The Veteran also attended a VA psychiatric examination in February 2020, which also found that the Veteran had chronic sleep impairment related to his PTSD. This, however, was completely duplicative of the prior findings at the April 2019 VA examination regarding sleep impairment.
the August 2019 decision already established that the Veteran had a diagnosis of sleep apnea and that he had difficulty sleeping at night due to PTSD. The treatment records that have been added since then are wholly duplicative of information already present in the claims file, and as such, they do not tend to prove or disprove any matter at issue, and they cannot be "new and relevant." See 38 C.F.R. § 3.2501.

The Board therefore finds that while there were additional treatment records and examination reports submitted and associated with the record, and these records are therefore "new," the information within these records is either completely irrelevant to the issue of entitlement to service connection for a sleep disorder, or they only further showed that the Veteran reported having difficulty sleeping and continued to carry a diagnosis of sleep apnea, facts that were already established at the time of the August 2019 rating decision, and the records are therefore duplicative, and are not relevant. See 38 C.F.R. § 3.2501.

As new and relevant evidence has not been submitted, the claim for service connection for a sleep disorder cannot be readjudicated, and remains denied.

REASONS FOR REMAND

Right and Left Shoulder Disabilities

Because the Board has found that new and relevant evidence has been received to readjudicate the claims of entitlement to service connection for right and left shoulder disabilities, they are remanded so that the AOJ has the opportunity to readjudicate them on the merits in the first instance.

Additionally, the Board finds that the failure to obtain a VA medical opinion was a pre-decisional duty to assist error. The Veteran had consistently reported having ongoing shoulder pain since service, including at the February 1993 VA examination, held just two months after separation from service, where he reported left shoulder discomfort and was diagnosed with mild left shoulder degenerative joint disease, although this was not confirmed on X-rays. The VA treatment records also showed that he reported having ongoing shoulder pain. The duty to obtain a VA medical examination and opinion had been triggered. See McLendon v. Nicholson,?20?Vet. App.?79, 81 (2006).? While unfortunately it is now too late for the Veteran to attend an in-person VA examination, the Board remands these issues so that a VA medical opinion can at least be obtained.

The matters are REMANDED for the following action:

Obtain a medical opinion to address the nature and etiology of the Veteran's right and left shoulder disorders. The?examiner must be provided access to the Veteran's entire claims file and must specify in the report that the claims file has?been reviewed.

a) What were the Veteran's most likely diagnoses of the right and left shoulders? The Board asks the examiner to consider the VA treatment records showing frequent complaints of bilateral shoulder pain, the March 2021 X-ray that found left shoulder arthritis changes, and the March 2023 finding of limited range of motion in both shoulders.

b) If no diagnosis is found for the right shoulder, please consider his past reports of right shoulder pain, and whether he had any symptoms, including pain alone, resulting in functional impairment, which can also constitute a disability for VA purposes. Saunders?v.?Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

c) For all diagnoses or symptoms causing functional impairment, is it at least as likely as not that the disorder was incurred in or is related to the Veteran's active duty service? Please consider the lay assertions of that the shoulder symptoms began during active duty service, and the February 1993 VA examination, held two months after separation from service, where he reported left shoulder discomfort and was diagnosed with mild left shoulder degenerative joint disease.

A complete and fully explanatory rationale must be provided.? If the opinion cannot be rendered without resorting to speculation, the examiner must explain why.

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Mary E. Rude, 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.

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