Citation Nr: 1301617 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-07 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for bicipital tendonitis with mild humeral subluxation, referred to as a left shoulder disability. 2. Entitlement to service connection for erectile dysfunction. 3. Entitlement to service connection for residuals of an injury to the ribs. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to May 1990; November 1990 to May 1991; and, from May 1997 to September 1997. He also served in the Reserves with multiple periods of active duty for training (ACDUTRA) between May 1991 and September 1997. His service includes participation in Operation Desert Shield/Storm in Southwest Asia from December 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision denying entitlement to service connection for erectile dysfunction, and a June 2006 rating decision denying entitlement to service connection for a left shoulder disability and residuals of an injury to the ribs, both of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This appeal was previously before the Board in December 2010, at which time it was remanded in order to afford the Veteran a VA examination and obtain opinions regarding entitlement to service connection. In July 2011 the Veteran was afforded a VA examination, and opinions regarding the left shoulder and erectile dysfunction were obtained. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to the issues of entitlement to service connection for a left shoulder disability and for erectile dysfunction. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). For the reasons discussed below, however, the Board finds that the issue of entitlement to service connection for residuals of an injury to the ribs must be remanded. The Board observes that subsequent to remanding the issue of entitlement to service connection for a condition manifested by chronic fatigue, headaches, and joint pain, to include undiagnosed illness, in May 2012 the Veteran was granted entitlement to service connection for the same. As such, this issue is no longer on appeal before the Board. The issue of service connection for residuals of an injury to the ribs is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's left shoulder disability is causally related to service. 2. The evidence is at least in equipoise as to whether the Veteran's erectile dysfunction is causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). 2. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issues on appeal given the favorable nature of the Board's decision with regard to the pending claims. Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Left Shoulder Service treatment records show that at a March 1989 enlistment examination the Veteran's upper extremities were normal. Service personnel records reflect that the Veteran participated in Assault Climbers training. In December 2005 the Veteran recounted several experiences in service in which he had injured his left shoulder. He indicated that while he was on a ski patrol in Norway he fell and injured his left shoulder. He reported that in approximately 1992 while serving in Mexico he fell from a Humvee and experienced left shoulder pain. Also, he reported that during Assault Climbers School for Special Operations he slipped and fell approximately 60 feet, such that his shoulder was thrown out. VA treatment note from April 2004 indicates that the Veteran reported experiencing left shoulder difficulties since approximately 1991. In January 2006 the Veteran reported that his left shoulder often went numb, and at least 4 times weekly was extremely stiff with a dull pain. He indicated that he self-medicated with Ibuprofen. The Veteran emphasized that he did not have insurance, and had experienced embarrassment regarding some of his injuries such that he had not sought treatment. VA treatment note from February 2006 references the Veteran's 1997 left shoulder injury. A June 2006 X-ray impression of the left shoulder showed a slight downward displacement of the humeral head in relationship to the glenoid. At a June 2006 VA examination, the Veteran reported that he had injured his left shoulder in 1997 during climbing school. He described experiencing soreness and numbness in his left shoulder, as well as weakness and pain. He indicated that he experienced difficulty bench pressing weight. On examination there was a positive Neer's test, and pain at the bicipital tendon insertion with resistance. There was mild movement with the sulcus. There was a painful arc from 120 to 180 degrees. The June 2006 X-ray was reviewed. Impression was of bicipital tendinitis with mild humeral subluxation. The examiner indicated that it would be speculative to provide a nexus regarding the left shoulder without medical evidence regarding when or how a left shoulder injury occurred. In July 2006 the Veteran indicated that the instances that contributed to his left shoulder pain included those during the Assault Climbers Course, fall in Norway, and the fall through a window. In its December 2010 remand, the Board observed that the June 2006 examiner failed to properly consider the Veteran's lay contentions regarding his left shoulder. The Board emphasized that the Veteran had not only reported falling in 1997 when climbing through a window at which time he injured his left shoulder and ribs, but also hurting his shoulder falling out of a Humvee in 1991, and during a fall while doing an assault climb in 1995 or 1996. There is support for the credibility of the Veteran's lay contentions of falling during climbing in the service treatment records showing he fell onto a rock pile in November 1990, and evidence of training as an assault climber. There is also evidence of a rib injury in 1997 which would appear to support his contentions of an injury during that year that included his left shoulder. The Veteran was subsequently afforded a July 2011 VA examination wherein he reported developing pain in his left shoulder in approximately 1995, and that he had injured his shoulder during training. He reported that he treated his left shoulder tendinitis with Motrin, and that his X-rays were negative. Examination showed reduced ranges of motion for the left shoulder, and objective evidence of pain with active motion. The examiner diagnosed the Veteran as having tendinitis of the left shoulder. He opined that it was at least as likely as not that the Veteran's diagnosis of tendinitis of the left shoulder was related to service. He reasoned that this specifically included the Veteran's in-service climbing accidents as shown in service treatment records, and as reported by the Veteran. The examiner indicated that the Veteran had been evaluated and treated for his left shoulder while in service, and that he continued to experience similar symptoms such that there was a continuity of symptomatology. Erectile Dysfunction Service treatment records show that at the March 1989 enlistment examination genitourinary system was normal. Service personnel records reflect that the Veteran spent time in Norway. In December 2005 the Veteran explained that while serving in Norway on patrol he urinated in a designated area when an arctic wind blew against him, and the tip of his penis turned a grayish color. He reported that the service corpsman provided him with an "adult magazine" and he was encouraged to attain an erection in order for the blood to again flow to the area, but that his response was delayed. In January 2006 the Veteran again indicated that he injured his penis in Norway during cold weather operations, causing him to experience difficulty attaining an erection. He reported that he had treated this difficulty with over-the-counter medications, male enhancers, and natural foods. As noted above, the Veteran emphasized that he did not have insurance, and had experienced embarrassment regarding some of his injuries such that he had not sought treatment. VA treatment records from February 2006 show that the Veteran reported that he had experienced a problem with the head of his penis following frostbite to that area. In April 2006 the Veteran reported experiencing erectile dysfunction that was present since an experience with frost bite. Pursuant to the Board's remand, the Veteran was afforded a July 2011 VA examination regarding his erectile dysfunction. The examiner indicated that the Veteran reported developing erectile dysfunction following experiencing the Nordic wind and cold on his penis. The Veteran was diagnosed as having erectile dysfunction, which condition reportedly improved with Levitra. The examiner indicated that it was at least as likely as not that the Veteran's erectile dysfunction had its onset in or was related to service, to specifically include his cold exposure while in Norway. The examiner reasoned that the Veteran had developed symptoms of erectile dysfunction following service in Norway, and that the Veteran reported experiencing a continuity of symptomatology since service. Legal Analysis Lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran's testimony is competent evidence describing events that took place, such as multiple falls injuring his left shoulder and exposure of his penis to Nordic wind and weather such that it turned a grayish color. The Veteran's accounts have been consistent and were reported not only in connection with his claim but also in his attempt to pursue medical treatment, and as such are also considered credible. In reaching the conclusion that the most persuasive evidence supports the claims of service connection for a left shoulder disability and erectile dysfunction, the Board accords particular probative value to the July 2011 VA examiner's report finding such conditions were at least as likely as not related to service. These opinions were arrived at after a thorough and comprehensive review of the claims folder containing service and post-service medical records; the Veteran's actual medical history; and current examination of the Veteran. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims folder was reviewed). The examiner's opinions were well-reasoned because they were supported by adequate rationale discussing the events experienced in service as they regarded the claimed disabilities. As noted above, the Board has found the Veteran's account of in-service events both competent and credible. Thus, the Board finds the VA examiner's report and opinions to be the more persuasive and thorough expert medical observations and opinion, as compared to the earlier speculative opinion that discounted the Veteran's reported statements, and notes that the 2011 opinions support the claims. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Consequently, the Board finds there is at least an equipoise of the evidence such that the Board will grant service connection for a left shoulder disability and erectile dysfunction. The benefit-of-the-doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for a left shoulder disability is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for erectile dysfunction is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Residuals of an Injury to the Ribs As discussed in the December 2010 remand, there is a history of trauma to the ribs in service, first in November 1990 after the Veteran fell onto a rock formation, and again in August 1997 when he fell while climbing through a window. An August 1997 service treatment record assessed the Veteran as having rib contusions. The Veteran has reported experiencing sporadic rib pain since his injuries, most recently documented in February 2006, and reported in his medical history at the June 2006 VA examination. The June 2006 examiner determined that the Veteran's rib was well healed. In December 2010 the Board found that the X-ray from February 28, 2006, (apparently mistakenly cited as February 28, 2005, in the June 2006 VA examination report) is problematic as the report states there is a "limited but negative view." The Veteran's representative expressed dissatisfaction with the findings from the June 2006 examination in October 2010, and requested another examination. The Board considered the February 2006 report, upon which the examiner relied in part in finding that the rib was healed, to be incomplete given that the X-ray view of the ribs was "limited." In light of the Veteran's continued reports of pain in that region, the Board found that further testing to include a more complete X-ray or other diagnostic testing should be done to determine whether there is a residual disability of the rib area stemming from trauma sustained during service. 38 C.F.R. § 3.159(c)(4)(2012). As this development was not completed on remand, the Board must again remand the claim for compliance with its previous directives. The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA treatment records since January 2012 should be obtained and associated with the claims folder, either in paper format or via Virtual VA. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder all available outstanding VA treatment records since January 2012. If records are identified and sought but not obtained, the claims folder should contain documentation of the attempts made to obtain the records. 2. Following receipt of any available outstanding treatment records, but whether or not records are obtained, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any residuals of an injury to the ribs. The claims folder must be made available to and reviewed by the examiner. All indicated studies, to include X-rays, should be performed. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any residuals of an injury to the ribs found to be present had its onset in or is related to service, to specifically include the Veteran's in-service climbing accidents as shown in the service treatment records and described in his lay statements. In offering these opinions, the examiner must acknowledge the Veteran's report of a continuity of symptoms. A rationale for opinions expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should so state, and indicate why the requested opinion would resort to speculation. 3. Following any additional development as necessary, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs