Citation Nr: 1112904 Decision Date: 04/01/11 Archive Date: 04/13/11 DOCKET NO. 07-18 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for anterior instability of the right shoulder. 2. Entitlement to service connection for residuals of a left calf gastrocnemius medial head tear, to include muscle spasms. 3. Entitlement to an initial rating greater than 10 percent for right knee instability. 4. Entitlement to an initial rating greater than 10 percent for left ankle hypertrophic changes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a right shoulder disorder and a left calf disorder, and granted service connection for right knee instability, with an assigned disability rating of 10 percent, and left ankle hypertrophic changes, also with an assigned disability rating of 10 percent. The issues of entitlement to an initial rating greater than 10 percent for right knee instability and an initial rating higher than 10 percent for left ankle hypertrophic changes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran's anterior instability of the right shoulder was incurred in, or caused by, his military service. 2. The Veteran's residuals of a gastrocnemius medial head tear, to include muscle spasms, was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for anterior instability of the right shoulder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2010). 2. The criteria for entitlement to service connection for residuals of a gastrocnemius medial head tear, to include muscle spasms, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2010). In this decision, the Board grants service connection for anterior instability of the right shoulder and residuals of a gastrocnemius medial head tear, to include muscle spasms. This award represents a complete grant of the benefits sought on appeal with regard to these issues. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran contends that he currently suffers from shoulder pain flare-ups that limit his range of motion due to an injury to his right shoulder that he sustained in service. He also contends that he currently suffers from intermittent calf muscle spasms in his left leg due to an injury sustained to the muscle in 1994. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306. "[I]n order to establish service connection or service-connected aggravation for a present disability the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all 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 Thompson v. Gober, 14 Vet. App. 187, 188 (2000); Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). No past medical conditions or injuries were listed on the Veteran's April 1978 examination report. The Veteran stated that he was "in good health." Service treatment records dated from May 1994 show that the Veteran sought treatment for left calf pain and swelling lasting approximately 9 days. The Veteran reported that the pain began while he was playing basketball. The assessment provided in the treatment records is a tear of the medial head of the gastrocnemius muscle. The Veteran was advised to ice the leg at home. He continued to seek treatment for pain and swelling throughout May 1994. In August 1994, the notes show that the Veteran's pain of the gastrocnemius muscle was resolving, and he was allowed to go back to running with appropriate stretching. The muscle was still slightly tight upon examination. The Veteran's service treatment records also contain a right shoulder x-ray from December 2000 showing findings consistent with a chronic Hill-Sacks lesion, specifically a slight depression near the greater tuberosity. Treatment notes from January 2001 show that the Veteran reported an 8 to 10 year history of right shoulder pain following a basketball injury. As noted, review of the x-rays showed depression on the femoral head consistent with a Hill-Sachs deformity. The physician provided an impression of "right anterior shoulder disability" and prescribed physical therapy. Treatment notes from February 2001 reflect that the Veteran was continuing with physical therapy for the right shoulder. By March 2001, the notes indicate that his shoulder was no longer particularly symptomatic, and his physical therapy records show that he tolerated treatment and/or therapeutic activity without complaints or difficulty. The Veteran was able to meet 90 percent of the physical therapy goals and was discharged to a home exercise program. In February 2005, the Veteran was provided with a VA examination. X-rays were also taken, and the examiner determined that the right shoulder x-ray showed no evidence of acute bony injury, dislocation, or significant abnormalities of the right shoulder. The examiner also assessed the Veteran with a goniometer and reviewed his medical history of injury during service. The examiner noted that the Veteran reported flare-ups causing pain and loss of range of motion. The examiner gave the opinion that "[i]t is at least as likely as not that this is related to service." No further explanation is available for the opinion. In regard to the examiner's evaluation of the left calf, the notes state that the Veteran had full range of motion with no pain at the time of the examination and that "[t]his problem at this time is unfounded." The opinion provided is that "it is not at least as likely as not related to anything in the military that I can find." The Veteran has also submitted a statement from his private physician dated August 2006. The physician provided the opinion that it is at least as likely as not that the Veteran's shoulder pain and instability began in service in consideration of the Veteran's reported history of his in-service injury, service treatment records showing anterior shoulder instability, and his current complaints of chronic, intermittent right shoulder pain. With regard to the left calf disorder, the physician also provided the opinion that the Veteran's calf spasms are directly related to the gastrocnemius medial head tear that occurred in service, as substantiated by his service treatment records. It is not error for the Board to favor one competent medical opinion over another when the Board gives an adequate statement of the reasons and bases for that determination. Owens, 7 Vet. App. at 433. The Board notes that the VA examiner determined that the Veteran did not suffer from any right shoulder or left calf disabilities related to his military service, but finds that the VA examiner's opinion lacks probative value due to the lack of sufficient explanation and reasoning and misreading of the Veteran's service treatment records; contrary to the assertion of the VA examiner, these records do show an injury to the Veteran's left calf muscle. In summary, the VA examiner's opinion does not provide the kind of analysis that can be weighed against other opinions and is not based on sufficient facts and data. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that it carries less weight than the opinion of the Veteran's private physician. Therefore, upon review of the evidence of record, the Board finds that the Veteran has a currently diagnosed disability of right anterior shoulder instability and residuals of a left calf gastrocnemius medial head tear, to include muscle spasms; that the evidence establishes that the Veteran suffered an injury to his shoulder and his left calf muscle while playing basketball in service; and that the more probative and credible medical opinion evidence of record establishes a casual relationship between the Veteran's currently diagnosed disabilities and his documented in-service injuries. Therefore, resolving all doubt in favor of the Veteran, service connection for anterior instability of the right shoulder and residuals of a left calf gastrocnemius medial head tear, to include muscle spasms, is warranted. ORDER Service connection for anterior instability of the right shoulder is granted. Service connection for residuals of a left calf gastrocnemius medial head tear, to include muscle spasms, is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that he is entitled to a higher disability rating for his service connected right knee instability and left ankle hypertrophic changes. However, more than six years have passed since the Veteran's previous VA examination. VA's duty to assist includes the conduct of a thorough and comprehensive VA examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Thus, the Board finds that a more contemporaneous VA examination is needed in order to assess the current severity of the Veteran's service-connected disabilities. Furthermore, as noted above, the Veteran submitted a statement from his private physician, Dr. Matthew H. Rosen, showing that the Veteran has received treatment from his office, Seminole Sports & Family Medicine, beginning in October 2002, during service, and continuing after the Veteran's retirement beginning in January 2005. As these records are relevant to showing the extent of the Veteran's current disabilities, they should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's treatment records from Dr. Matthew H. Rosen, Seminole Sports & Family Medicine, 1000 W. Broadway Street, Suite 102, Oviedo, Florida 32765, dated from October 2002. The Veteran should be asked to submit any relevant records that he has in his possession. 2. Then, schedule the Veteran for a VA orthopedic evaluation to determine the severity of the Veteran's right knee instability and left ankle hypertrophic changes. The claims folder should be made available to and reviewed by the examiner. All necessary studies and tests, including X-rays, should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected (1) right knee instability and (2) left ankle hypertrophic changes. The examiner should identify any orthopedic and findings related to the service-connected (1) right knee instability and (2) left ankle hypertrophic changes and fully describe the extent and severity and those symptoms. The examiner should report the range of motion of the Veteran's (1) right knee, in degrees, and (2) left ankle, in degrees. With regard to both the right knee and left ankle, the examiner should further note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (a) pain on use, including during flare-ups; (b) weakened movement; (c) excess fatigability; or (d) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should state whether there is any evidence of recurrent subluxation or lateral instability of the right knee, and if so, to what extent; whether there is any genu recurvatum; and whether there removal of the semilunar cartilage or dislocation of the semilunar cartilage, and if so, whether it is with frequent episodes of locking, pain, and effusion into the joint or otherwise symptomatic. The examiner also should state whether there is any evidence of ankylosis of the subastragalar or tarsal joint, and, if so, whether it is in good weight-bearing position or poor weight-bearing position; whether there is any malunion of the os calcis or astralagus, and, if so, describe the extent of the deformity; whether the Veteran has had an astragalectomy. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs