Citation Nr: 1500241 Decision Date: 01/06/15 Archive Date: 01/13/15 DOCKET NO. 12-16 066 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disability (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1977 to July 1981, from March 1983 to May 1987, and from June 1991 to September 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Des Moines, Iowa RO which, in pertinent part, continued a 10 percent rating for GERD and denied service connection for a right shoulder disability. In November 2014, a videoconference Board hearing was held before the undersigned; a transcript of the hearing is included in the record. The matter of the rating for GERD is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. FINDING OF FACT The Veteran has a chronic right shoulder disability which became manifest in service and has persisted. CONCLUSION OF LAW Service connection for a right shoulder disability is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (including arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following a veteran's discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service personnel records reflect that his MOS's in service included infantryman. The Veteran contends, in essence, that he has a chronic right shoulder disability that had its onset due to injuries in service and has persisted since. The evidence of record, including VA and private treatment records, hearing testimony, lay statements, and VA examinations, shows that he has diagnoses of degenerative arthritis of the acromioclavicular joint and an inferior right acromioclavicular joint osteophyte. The Veteran's STRs note shoulder symptoms. In March 2001 he underwent an anterior cervical fusion of C6-C7. On August 2002 medical examination, his upper extremities were abnormal on clinical evaluation; he was noted to be on profile. On June 2003 examination, he reported chronic neck and left shoulder pain. In a June 2003 report of medical history, he reported a history of painful shoulder, elbow, or wrist, and swollen or painful joint. In a February 2004 statement, the Veteran's wife noted his complaints of occasional burning sensation in his right arm and numbness in both hands and fingers. In a February 2005 statement, the Veteran reported that he had bilateral shoulder pain and that was on a permanent profile in service (from Dr. Rankin) prohibiting lifting over 25 pounds, push-ups, sit-ups, rope-climbing, and carrying a ruck sack; running or walking were to be at his own pace and distance. On November 2007 VA treatment, the Veteran reported chronic neck pain with a tingling sensation to the shoulders, left more than right. He reported shoulder pain with a tingling sensation to the left shoulder, described as pain with lifting objects and working with his arms above his head. The assessments included shoulder pain, tingling, and multiple joint stiffness. In a February 2008 statement, the Veteran stated that he began seeking treatment for pain in his shoulders in 1986 while serving as a drill sergeant. He reported that since 1986 he has always had pain in both shoulders, with the left more severe. He reported that in late 2001 or early 2002 he was told at Fort Leonard Wood hospital, that he had deterioration and arthritis in both shoulders. On March 2008 VA treatment, the Veteran reported a long-standing history of bilateral shoulder pain, longer in the left shoulder. On October 2009 VA treatment, he continued to have bilateral shoulder pain that was being managed conservatively. On December 2009 VA treatment, he complained of bilateral shoulder pain, with the right shoulder worsening more than the left; the treating provider was concerned with possible intra-articular pathology such as a SLAP tear. A February 2010 right shoulder MRI revealed findings compatible with an undersurface partial tear, correlating with the Veteran's clinical symptoms. There were mild acromioclavicular degenerative joint changes. On March 2010 VA treatment, the Veteran complained of right shoulder pain bothering him more than his left shoulder. He reported that he did carpentry work, but was limited by pain. The impression was suspected labral tear. On January 2012 VA treatment, the Veteran reported having chronic stable bilateral shoulder pain. He reported that he was a candidate for rotator cuff and cervical disc surgery, but had declined surgery thus far. In his June 2012 substantive appeal, the Veteran stated that he sustained a right shoulder injury in service and that an MRI showed injury to both of his shoulders. On March 2013 VA treatment, the Veteran complained of right shoulder pain at the insertion of the biceps tendon, with the same symptoms as his left shoulder pain, including numbness, tingling and shooting pain traveling from the medial epicondyle down to the fourth and fifth digit of the hand. The assessment was bilateral shoulder pain, left worse than right, secondary to biceps tendinitis; a previous MRI had indicated a possible SLAP injury. On January 2014 VA examination, right shoulder X-rays showed marked degenerative changes involving the acromioclavicular joint with subchondral sclerosis, subchondral cysts and inferior osteophyte. A previous (February 2010) MRI of the shoulder was noted to have shown a prominent inferior osteophyte impinging on the supraspinatus muscle. The acromion was horizontal without spur or subacromial narrowing. The impressions included moderate to marked degenerative arthritis of the right AC joint and inferior right AC joint osteophyte. On September 2014 VA examination (of the left shoulder), there was localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the right shoulder and guarding of the right shoulder. The Hawkins' impingement test, the empty-can test, the external rotation/infraspinatus strength test, and the lift-off subscapularis test were each positive for the right shoulder. There was tenderness on palpation of the right AC joint, and the cross-body adduction test was positive for the right shoulder. Degenerative or traumatic arthritis of both shoulders was documented by imaging. At the November 2014 videoconference hearing, the Veteran testified that his right shoulder began giving him problems at the same time as his [service-connected] left shoulder. He testified that he first sought treatment for both shoulders in February 1987 when he was serving as a drill sergeant at Fort Hood; he was given Motrin and muscle relaxers. He was seen a second time while serving as a drill sergeant, and was given the same medications again; so he stopped [seeking treatment]. He stated that he has a running VA prescription for ibuprofen, which he had been taking for years. He testified that he was told his shoulder pain was being caused because by a ruptured or bulged disc in his neck, and had cervical fusion surgery in March 2001. He testified that his shoulder pain never went away but became more frequent. He had several physically demanding jobs in service including armor reconnaissance, cavalry scout, drill sergeant, and then four years in the infantry (and carried heavy sacks and weapons that taxed his shoulders). He testified that he was sent to Fort Leonard Wood, Missouri, in November 2001 to be medically discharged, but had over 18 years of active duty and instead stayed until he could retire. He indicated that after a series of X-rays by Dr. Rankin (who told him he had the joints of an old man), he was given a physical profile for his upper extremities. He testified that after service, he has constantly had right shoulder pain, and that an MRI finally confirmed problems with both shoulders. He testified that although he has worked as a carpentry instructor after service, this did not involve overhead work, as he taught in a classroom from a textbook. The Board finds that there is ample documentation of ongoing right shoulder problems beginning in service and continuing thereafter. He has submitted lay statements supporting that a chronic right shoulder disability was first manifested in service; the Board finds these statements highly credible as they correlate with reports and findings noted in service and shortly thereafter. VA and private treatment providers have diagnosed right shoulder degenerative joint disease. The Board finds that the evidence reasonably shows that the Veteran has a chronic right shoulder disability that became manifest in service and, as shown by VA and private treatment records, credible lay testimony, and VA diagnosis, has persisted to the present time. See 38 C.F.R. § 3.303(b). All of the requirements for establishing service connection are met; service connection for a variously diagnosed right shoulder disability is warranted. ORDER Service connection for a right shoulder disability is granted. REMAND The Veteran contends that his GERD has worsened since his most recent (March 2014) VA medical examination/Disability Benefits Questionnaire. While a new examination is not required simply because of the time which has passed since the last examination, a new examination is appropriate when there is an assertion of an increase in severity since the last examination. The Veteran testified that he was previously taking prescribed medication for GERD once daily, but that the dosage had recently been increased/doubled, and he now took the medication twice daily. A contemporaneous examination to assess the disability is necessary. Additionally, there may be relevant VA evaluation or treatment records not yet associated with the record. Records of such evaluation or treatment are constructively of record and must be secured. Accordingly, the case is REMANDED for the following action: 1. Secure for the record copies of the complete updated (to the present) clinical records of any (and all) VA evaluations and/or treatment the Veteran has received for GERD. 2. Thereafter, arrange for the Veteran to be examined by an appropriate physician to ascertain the current severity of his GERD. The Veteran's entire record (to include this remand and a copy of the criteria in 38 C.F.R. § 4.114, Code 7346) must be reviewed by the examiner in connection with the examination. [The examiner should note that the Veteran has established service-connection for irritable bowel syndrome and residuals of colon surgery, and that the rating for that disability is not at issue (to the extent that any symptoms/impairment found may be distinguished as due solely to IBS, such distinction must be made).] Findings and related impairment noted should be sufficiently detailed to allow for consideration of the criteria in 38 C.F.R. § 4.114, Code 7346. The examiner must explain the rationale for all opinions. 3. The AOJ should then review the record and readjudicate the remaining claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs