Citation Nr: 1324188 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 11-08 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a left shoulder disorder, including but not limited to degenerative joint disease, rotator cuff impingement, bursitis, and tendinitis. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from June 1970 to January 1972. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for impingement syndrome of the left shoulder. His claim initially was for a left shoulder contusion and rotator cuff injury. The Board is recharacterizing his claim, however, to be more expansive in light of his VA treatment records and the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), indicating a claimant seeking service connection for a disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms. The scope of the claim therefore includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Clemons Court indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). The Board therefore has to construe this claim for service connection based on reasonable expectations of a non-expert claimant. In any event, this claim requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the additional delay that inevitably will result from this remand, the additional development of this claim is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. The Veteran had a left acromioclavicular repair in 1966 following a softball injury, so well before beginning his military service in June 1970. And, indeed, that surgery was noted during his June 1970 military induction physical, although he was found fit for duty. He thus is not entitled to the presumption of soundness as concerning this shoulder. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted"). See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that mere "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id., at (b). In July 1970, so just one month after beginning his active duty service, the Veteran sustained a left shoulder contusion while playing football. His service treatment records (STRs) indicate it was an acute trauma of the left shoulder, and he was placed on profile throughout the remainder of basic training. During his service he reported having pain intermittently, although the report of his December 1971 military separation examination does not mention any shoulder pain, and he reported being in good health. He was honorably discharged from service in January 1972. It was not until many years later, in July 2010, when he filed this claim of entitlement to service connection for a left shoulder disorder. But his post-service VA treatment records show a history of shoulder pain for several years prior to the filing of this claim. Diagnoses have included "mild posterior positioning of the humeral head consistent with partial dislocation or subluxation" as well as degenerative joint disease with calcific tendinitis (February 2007); tendinopathy (June 2007); calcific tendinitis (January 2008); and rotator cuff impingement and subacromial tendinitis (January 2010). He had a VA compensation examination in October 2010. The VA examiner noted the Veteran's intermittent left shoulder pain since his discharge from service. The Veteran reported receiving cortisone injections and having several MRIs at VA facilities. The examiner diagnosed impingement syndrome of the left shoulder. He stated the MRIs were equivocal, and that the Veteran had at most "a partial tear of the supraspinatus tendon." In general terms, he found the Veteran had a "bad shoulder" when entering service and that the June 1970 injury (apparently meaning instead to refer to the July 1970 injury) "simply stirred up the problem." As such, he concluded the left shoulder contusion sustained in service did not permanently affect (presumably meaning did not chronically aggravate) the pre-existing injury. If, as here, a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. And in this circumstance VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) do not apply, i.e., VA does not have to show by clear and unmistakable evidence both that he had a left shoulder injury prior to his service and that it was not aggravated during or by his service beyond its natural progression. Instead, he, not VA, has the burden of showing a chronic worsening of the shoulder during or as a result or consequence of his service. A pre-existing condition will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (all holding that mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service," unless the underlying condition, itself, as contrasted with mere symptoms, has worsened). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Only if the Veteran somehow manages to show a chronic worsening of his left shoulder during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Here, the Veteran's STRs show that, upon enlistment into service, he had a pre-existing shoulder injury. And the VA compensation examiner has determined there was no aggravation during service of this pre-existing disability beyond its natural progression. But the examiner did not discuss the underlying medical rationale for this conclusion, which is where most of the probative value of an opinion is derived, not merely from reviewing the claims file. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet App 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consider also that the Board has expanded the scope of the Veteran's claim to include a number of diagnoses, indeed, even more than that VA examiner considered, so the Veteran needs to undergo another VA compensation examination for this necessary medical nexus opinion regarding the etiology of his disorder, including especially in terms of its purported relationship with his military service, by aggravation if not direct incurrence or causation. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination for an additional (supplemental) medical nexus opinion concerning whether the Veteran's military service chronically aggravated any pre-existing left shoulder disability, meaning permanently worsened it above and beyond its natural progression. The Veteran is hereby advised that his failure to report for this additional VA examination, without good cause, may have adverse consequences on this pending claim since this will result in deciding this claim based on the existing evidence of record. See 38 C.F.R. § 3.655. The examination should include all necessary diagnostic testing or evaluation. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history. Based on a comprehensive review of the claims file, as well as the current examination of the Veteran, the examiner is asked to indicate whether the Veteran's military service (including especially the football injury he sustained in July 1970) chronically aggravated the pre-existing left shoulder injury, that is, permanently exacerbated the pre-existing left shoulder injury beyond its natural progression. In making this determination, the examiner is directed to discuss whether any present left shoulder disability, including but not limited to degenerative joint disease, rotator cuff impingement, bursitis, and tendinitis, is evidence of chronic aggravation during service of the pre-existing disability. In contrast to the October 2010 VA examination, the examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the file. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).