Citation Nr: 1310562 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-31 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a low back disability. 4. Entitlement to an initial compensable rating for a left wrist disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his Spouse ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to July 1997. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had a hearing at the RO before the undersigned Veterans Law Judge in January 2012. A transcript of the hearing is of record. The issues of entitlement to service connection for a low back disability and entitlement to an initial compensable rating for a left wrist disability are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran's currently diagnosed left shoulder disorders, to include rotator cuff tear, are related to his military service. 2. The Veteran's currently diagnosed left shoulder disorders, to include degenerative arthritis, are related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the evidence currently of record is sufficient to substantiate his claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Factual Background and Analysis The Veteran claims he has bilateral shoulder disorders as a result of numerous in-service injuries from his duties as a mechanic and parachutist. At his hearing, he described various lifting injuries from both vehicle work and in-service physical fitness regimens, injuries incurred as a result of "bad landings" in combat equipment jumps, and numerous in-service treatments for chronic bilateral shoulder pain. His service treatment records confirm extensive treatment for bilateral shoulder injuries and resulting pain. The Veteran was treated for bursitis, deltoid strain, impingement syndrome, and chronic bilateral shoulder pain. In August 1991, the doctor noted an "obvious deformity" of the right shoulder. The Veteran described various injuries related to lifting weights, jumping, and duties overseas in Desert Storm. Despite the extensive treatment, the records do not confirm in-service diagnosis of a "chronic" left or right shoulder disability. In addition to the objective medical evidence and the Veteran's own testimony, the Veteran also submitted lay statements from fellow servicemen who specifically recall the Veteran injuring his shoulders and his chronic pain. They describe the significant toll the parachute landings had on the Veteran, especially in windy conditions, dragging heavy combat equipment. The Veteran was afforded VA examinations in August 2008 and January 2009. At those times, the examiner found no evidence of a current right shoulder disability. Rather, the examiner indicated right shoulder strain had "resolved." The Veteran did have evidence at that time of residuals of a left shoulder rotator cuff tear, but the examiner opined that it is "less likely as not" that this tear occurred during service. The examiner explained in a January 2009 opinion that, "without a major acute injury to the left shoulder, a rotator cuff tear in a young male would be highly unlikely. This is most likely a degenerative type tear unrelated to his shoulder symptoms in service." The Board does not find this opinion persuasive. In contrast to the examiner's opinion, there is extensive objective evidence that the Veteran experienced "major acute injuries" of both shoulders. In addition, both the Veteran and fellow servicemen confirm major acute injuries of both his shoulders. While the examiner found the Veteran's right shoulder condition had resolved, subsequent medical records clearly indicate degenerative changes of the right shoulder, confirmed by X-ray. For these reasons, the Board does not find the VA examinations and opinions in this case persuasive. See, e.g. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). In support of his claim, the Veteran submitted a private medical opinion rendered by a private nurse practitioner in October 2007. Therein, the nurse practitioner opines that Veteran has "permanent problems" of the shoulders due to in-service injuries. This opinion is also not especially persuasive as the nurse practitioner did not provide a rationale or detail specific shoulder diagnoses. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding speculative or inclusive medical opinions are not probative). In short, the evidence shows the Veteran clearly had extensive injuries of and treatment for his shoulders during his military service. While he was not diagnosed with chronic disorders until after service, his chronic pain is well documented ever since service. While there is no persuasive medical opinion linking current diagnoses to in-service events, there is also no persuasive medical evidence to the contrary. In the Board's opinion, the evidence supportive of the claims is at least in equipoise with that against the claims. As such, service connection for bilateral shoulder disability is warranted. ORDER Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a right shoulder disability is granted. REMAND The Veteran claims he has a chronic low back disability due to in-service injuries as a paratrooper. He believes his left wrist is worse than currently rated. With regard to both claims, because it is necessary to remand these claims for other reasons, VA must obtain recent VA outpatient treatment records from August 2011 to the present to ensure the file is complete. With regard to his low back claim, the Veteran described various back-related injuries he incurred in the military as a result of 25 combat equipment jumps. He was a parachutist and would jump with heavy equipment many times landing directly on the equipment and injuring his back. Two fellow servicemen also submitted statements recalling his back injuries in service. His service treatment records reveal an extensive history of low back complaints following various jump-related injuries; however, the Veteran was not diagnosed with a chronic low back disorder while in the military. The Board notes, however, that the Veteran testified he also never underwent an X-ray examination or an MRI while in the military. After service, ongoing treatment and complaints for low back pain is evident. The Veteran was afforded VA examinations in August 2008 and January 2009. On both examinations, the examiner diagnosed the Veteran with mechanical low back strain secondary to obesity. The examiner specifically opined that the Veteran's obesity was the principal causal factor for his back pain. No other medical professional has provided a contrary opinion. These examinations, however, do not appear complete. The examiners did not note the Veteran's extensive in-service treatment for back pain and confirmed in-service injuries. In fact, the examiners did not even mention his parachuting duties. For these reasons, the Board finds it entirely unclear whether the opinions were rendered with a complete and accurate picture of the relevant facts. A new VA examination is indicated. See, e.g. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). With regard to the rating claim, the Veteran was last afforded a VA examination in 2009to determine the degree of severity of his left wrist disability. Since that time, the Veteran testified his left wrist has worsened in severity, to include daily pain, instability, and weakness. Indeed, the Veteran indicated he routinely drops things due to his left wrist weakness. Also significant, the Veteran testified to the Board in January 2012 that he is left-handed. In contrast, the RO adjudicated this claim and considered his disability under the impression he was right-handed. The fact that his disability affects his dominant hand has a significant bearing on his disability rating. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). For these reasons, a new VA examination is warranted to clarify the current severity of the Veteran's left wrist disability, to include whether the disability affects his "dominant" hand. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include VA treatment records from August 2011 to the present. All efforts to obtain medical records must be fully documented, and VA facilities must provide a negative response if records are not available. 2. After completion of the foregoing, arrange for the Veteran to be scheduled for an examination by a physician with sufficient expertise to determine the nature and etiology of any low back disorders present during the period of the claim. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on the examination results and review of the record, the examiner should provide an opinion with respect to each low back disorder present during the period of the claim as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service, to include his parachuting jumps, confirmed in-service back injuries, in-service back pain complaints, and his reported continuous pain since service? The examiner is to presume the Veteran is credible for purposes of this examination. The examiner is asked to specifically reconcile any opinion rendered with the remaining medical evidence, to include the reports of the prior VA examinations. The examiner must provide a complete rationale for each opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The Veteran should be scheduled for an examination by an examiner with sufficient expertise to determine the current degree of severity of his service-connected left wrist disability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to include a determination of which hand is dominant. 4. Undertake any other indicated development. 5. Readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, 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 action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs