Citation Nr: 1300788 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-29 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a skin condition of the ears, forehead, and nose. 4. Entitlement to service connection for a right hand disability, claimed as pain and numbness. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD). 6. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran was a longtime member of the Puerto Rice Army National Guard, with periods of active duty from April 1984 to September 1984, February 2003 to May 2003, and July 2006 to November 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2008 and July 2008 decisions by the San Juan, PR, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The May 2008 decision in pertinent part denied entitlement to service connection for bilateral hearing loss, while the remaining issues were addressed in the July 2008 decision. In September 2010 correspondence, the Veteran withdrew a perfected appeal for service connection for sleep apnea. Further, in October 2010, he withdrew an appeal for service connection of memory loss; he recognized that this symptomatology was being compensated as part of his service-connected traumatic brain injury (TBI) residuals and psychiatric disabilities. There remains no issue or question for the Board to address with respect to these two issues. The issues of entitlement to service connection for GERD and hearing loss 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. Left shoulder pain was first manifested on active duty service, and degenerative changes of the left acromioclavicular joint were diagnosed on x-ray within the first post-service year. 2. Hypertension was first manifested during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection of a left shoulder disability are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.71a, Diagnostic Code 5003 (2012). 2. The criteria for service connection of hypertension are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). With respect to the left shoulder and hypertension disabilities, the Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Hypertension and arthritis, also called degenerative joint disease, are listed chronic diseases for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). The presumptions are applicable to a Veteran who has served 90 days or more, as here. 38 C.F.R. § 3.307(a)(1) To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Left Shoulder Disability Service treatment records reveal complaints of nonspecific shoulder pain during the Veteran's most recent period of active duty service, particularly following his involvement in an improvised explosive device (IED) detonation in August 2007. At examination in October 2007, in connection with his release from active duty, the Veteran again complained of ongoing shoulder pain. However, no doctor made any clinical findings regarding impairment, disability, or objective evidence of left shoulder problems in service. Moreover, records fail to specify whether the complaints involved left, right, or bilateral shoulder problems. In filing his original October 2007 claim for benefits, the Veteran referred to a right shoulder condition; in May 2008, he amended his claim to also include "left shoulder pain(s)." At a January 2008 VA general medical examination, the Veteran reported that he had right shoulder pain due to carrying heavy equipment; he denied specific trauma, and made no reference to left shoulder problems. A joint specific examination was also conducted at that time. Again, the Veteran complained of right shoulder pain and denied left shoulder problems. However, on physical examination, pain with motion of the left shoulder was reported, resulting in some minimal loss of range of movement in all planes. An x-ray showed "mild degenerative changes of the acromioclavicular joint" and degenerative joint disease was entered as the current diagnosis. VA treatment records from December 2007 to October 2011 do not reveal specific complaints of left shoulder pain, though there is reference to generalized joint pains and ongoing use of topical ointments and medication for pain. The RO initially denied service connection for a left shoulder disability because service treatment records failed to show a specific diagnosis of such condition. In the July 2010 SOC, a Decision Review Officer (DRO), conducted a de novo review, and determined that the in-service subjective complaints of shoulder pain were acute and transient in light of the absence of a corresponding diagnosis in service. Further, the DRO noted that VA treatment records from 2008 to 2010 did not reveal any clinical diagnosis of a left shoulder disability. However, neither the original rating decision nor the DRO review considered the relevant January 2008 VA examination findings. X-rays showed changes sufficient to warrant a diagnosis of degenerative joint disease, and objective physical examination demonstrated associated slight functional limitations. The diagnosis of the chronic condition of left acromioclavicular degenerative joint disease is a listed presumptive condition for service connection under 38 C.F.R. § 3.307(a). Further, the Rating Schedule provides that where there is radiographic evidence of degenerative arthritis, combined with objective findings of painful limited motion of an otherwise noncompensable degree , a 10 percent evaluation is for assignment. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The January 2008 VA examination findings therefore show a compensable degree of disability within one year of the Veteran's November 2007 release from active duty. Accordingly, service connection for a left shoulder disability is warranted on a presumptive basis. Hypertension For VA purposes, hypertension means that diastolic blood pressures are predominantly 90 or greater, confirmed by readings taken two or more times on at least three different days. Isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Code 7101, Note 1. Either condition is service connectable. Service treatment records reveal that blood pressures were in the normal range through 2003, with some variation in both systolic (top) and diastolic (bottom) pressures. However, in May 2003, during a period of active duty, a blood pressure of 144/70 was registered on an annual examination, and systolic hypertension was noted. Systolic pressures since that time have persistently exceeded 140. Although at times diastolic pressures exceeded 90, they are predominantly noted to be in the 80's. Post-service VA records listed elevated blood pressure without a diagnosis of hypertension as an ongoing problem. At the January 2008 VA examination, readings of 135/86, 143/89, and 145/88 were registered. In March 2008, a VA doctor noted blood pressure of 160/88, and prescribed medication for hypertension. In sum, the service treatment records show a diagnosis of isolated systolic hypertension during active duty in May 2003, with continued blood pressure reading supporting such diagnosis since that time. Current VA treatment records verify the diagnosis of hypertension, as well as the use of medication for control. The medical evidence of record shows a diagnosis of the chronic condition of isolated systolic hypertension on active duty in May 2003, and the continued presence of that condition. Direct service connection is therefore warranted. ORDER Service connection for a left shoulder disability is granted. Service connection for isolated systolic hypertension is granted. REMAND With regard to the remaining issues, remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Hearing Loss Service treatment records dating from 1983 to 2008 document widely varying audiometric results over the course of service. Between his initial enlistment in 1983 and separation from active duty in 2007, overall hearing was worsened in both the left and right ears. However, VA's January 2008 audiometric testing shows that the Veteran does not even meet the criteria for a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In contrast, July 2008 service testing shows hearing worse than that present in October 2007. Due to the variation, and to ensure that an accurate record is under consideration in connection with the claim, a new VA examination is required. The existence and severity of a hearing loss must be established, and appropriate medical opinions regarding causation and aggravation of hearing loss for each period of the Veteran's service, and service overall, is required. An examiner must consider the Veteran's history of noise exposure in service, as well as the service-connected head injury and consequent noise exposure sustained in his most recent period of active duty service, when his convoy was hit by an improvised explosive device (IED) in Iraq. Skin Condition of the Ears, Forehead, and Nose The record reflects that additional VA records were associated with the claims file following the issuance of the July 2010 statement of the case. The Veteran has not waived initial RO consideration of these records. The records include references to various skin conditions, to include dermatophytosis, warts, and nonspecific lesions. While no record specifies that the conditions impact the areas claimed by the Veteran, and in some cases exclude such, there remains the possibility of a current skin disease as alleged. On remand, complete updated VA treatment records must be obtained. GERD Service treatment records indicate that prior to his entry into active duty service in 2006; the Veteran had already been experiencing gastrointestinal symptoms, including reflux and indigestion. GERD is in fact identified on a July 2006 examination for entry into active duty. As the condition pre-existed, the question becomes one of aggravation. Service treatment records show periodic complaints of gastric problems, and use of medications for control. On remand, an examination is required to establish whether the GERD in fact worsened during service, and if so, whether such worsening is due to the natural progression of the disease. Right Hand The Veteran claims service connection for right hand pain and numbness, apparently separate from symptoms of a cyst of the right middle finger which was surgically removed in 2010. The Veteran also underwent trigger finger release at that time. Current records indicate he is diagnosed with carpal tunnel syndrome. Service treatment records document involvement in an IED explosion; records show impact on the function of all his limbs, and he is service-connected for a bilateral shoulder disability. A December 2009 VA examination also appears to find some right upper extremity nerve dysfunction. Unfortunately, no examiner has provided a clear opinion on the relationship, if any between current symptoms and service, or service-connected disabilities. Remand is required to obtain such. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file complete updated VA treatment records from the medical center in San Juan, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of October 2011 to the present. All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records. 2. Schedule the Veteran for a VA audio examination. The entire claims file (to include the paper claims file and any pertinent medical records contained in the Virtual VA eFolder) must be reviewed by the examiner in conjunction with the examination. Attention is invited to the three folders of tabbed service treatment records. The examiner must be informed that noise exposure in service as a combat engineer, particularly during active service, has been credibly established, as has the Veteran's TBI in 2007. After conducting all required testing, the examiner must state whether there is a current hearing loss in either or both ears, and must opine as to whether any such hearing loss is at least as likely as not caused or aggravated by military service. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for a VA esophagus and hiatal hernia examination. The entire claims file (to include the paper claims file and any pertinent medical records contained in the Virtual VA eFolder) must be reviewed by the examiner in conjunction with the examination. Attention is invited to the three folders of tabbed service treatment records. The examiner must be informed that GERD is established to have pre-existed the Veteran's most recent period of active duty. After conducting all required testing, the examiner must state whether it is at least as likely as not that such was worsened during service, as reflected through use of medication, subjective complaints, or objective clinical findings. If so, is such worsening clearly and unmistakably due to the natural progression of the condition? A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Schedule the Veteran for a VA peripheral nerves examination. The entire claims file (to include the paper claims file and any pertinent medical records contained in the Virtual VA eFolder) must be reviewed by the examiner in conjunction with the examination. Attention is invited to the three folders of tabbed service treatment records. After conducting all necessary testing, the examiner is asked to render the following opinions: a. whether there is a current right hand neurological impairment manifested by pain and numbness. b. if so, whether such right hand neurological disability is at least as likely as not caused, or aggravated, by service. c. if so, whether such right hand neurological disability is at least as likely as not caused, or aggravated, by a service-connected disability. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs