Citation Nr: 1618048 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 10-01 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to an initial compensable disability rating for Lyme disease. 3. Entitlement to service connection for arthritis of all joints as secondary to service-connected Lyme disease. 4. Entitlement to service connection for night sweats as secondary to service-connected Lyme disease. 5. Entitlement to service connection for headaches as secondary to service-connected Lyme disease. 6. Entitlement to service connection for fatigue as secondary to service-connected Lyme disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from May 1986 to September 1991, January 2003 to July 2003, and February 2008 to February 2009. It also appears that the Veteran had Reserve service from November 1994 to February 2009 which would include numerous periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was previously before the Board in January 2011 at which time it was remanded to afford the Veteran the opportunity to testify at a Board hearing. The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in May 2011. A transcript of this proceeding has been associated with the claims file. The Board remanded this case again in April 2014 for additional development. The Board notes that the Veteran's representative was not provided with an opportunity to submit an Informal Hearing Presentation prior to the Board's current review of the case. However, as the Board's decision with respect to the right shoulder is a full grant of the benefit sought on appeal, the Veteran is not prejudiced by the issuance of this decision. Moreover, the Board finds no prejudice to the Veteran in proceeding with the issuance of the remand herein because, following the completion of the requested development, his representative will be given an opportunity to submit additional argument prior to the case's return to the Board. This appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and the Virtual VA claims processing systems. As was noted in the April 2014 Board remand, throughout the course of this appeal, the Veteran has made several statements regarding a possible heart disorder secondary to his service-connected Lyme disease. As such, the Board referred this issue to the Agency of Original Jurisdiction (AOJ) for appropriate action. Unfortunately, no action has been taken on this claim. Furthermore, a December 2015 memorandum shows that a claim for service connection for a sleep disorder has been referred to the RO but it appears that no action has yet been taken on this claim. As such, the claims are, once again, referred to the AOJ for appropriate action. The issues of entitlement to an initial compensable disability rating for Lyme disease and entitlement to service connection for arthritis of all joints, night sweats, headaches, and fatigue are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A preponderance of the evidence suggests that the Veteran injured his right shoulder during a period of ACDUTRA and had surgery on his right shoulder during a period of active service. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran holds diagnoses of strain and labral tear, including superior labral anterior-posterior lesion, which is the result of his ACDUTRA and/or active service and has been continually present since that time. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder, currently diagnosed as labral tear, including superior labral anterior-posterior lesion, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for a right shoulder disorder herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). By way of background, in a March 2009 statement, the Veteran wrote that he injured his right shoulder as an active reservist during a Battle Assembly in June 2006. According to the Veteran, the injury occurred while playing football as part of officer physical training (PT). The Veteran also wrote that he underwent surgery on his right shoulder in April 2008, during a period of active service. In support of this assertion the Veteran has submitted several statements from fellow service members verifying this injury. Specifically, in an August 2009 statement, J.G. wrote that the Veteran injured his right shoulder during Battle Assembly in June 2006. The battalion was conducting officer PT and the injury occurred during that event. J.G. was the battalion personnel officer during this time period and verified the injury. In an August 2009 statement from C.J.B., it was noted that the Veteran injured his right shoulder while playing football as part of officer PT during the June 2006 Battle Assemble. C.J.B. wrote that, at the time, he was the HHC Commander for the 1/289th TSBN. In a May 2011 statement, the Veteran's wife wrote that she remembered that her husband had injured his right shoulder during a drill weekend and that, when the pain did not go away, he went to see a doctor a few months later. She could not remember the exact weekend of the injury. In a May 2011 statement, T.L.G. wrote that he remembered that the Veteran injured his shoulder while participating in officer's physical training battle assembly weekend morning. T.L.G. wrote that, while he was not able to pin point the date of the event, he did recall the event happening as well as the young captain who unintentionally caused the injury. The Veteran's available service treatment records (STRs) reveal that the Veteran suffered a left shoulder separation in 2003 but are negative for the claimed June 2006 injury or subsequent April 2008 surgery for the right shoulder. However, the Veteran's STRs do show complaints of bilateral shoulder pain in a September 2005 examination and, in a December 2008 record, it notes that the Veteran had previous shoulder surgeries. Also, an August 1993 STR notes a pre-service fracture of the right clavicle at the age of 10. The Veteran was afforded a VA contract examination in March 2009. At that time, the Veteran reported that he fell and injured his right shoulder while stationed in Houston in 2006. This examination report noted a history of right shoulder surgery in 2008 as well as physical findings of a surgical scar on the right shoulder and showed a normal X-ray of the right shoulder. The impression was right shoulder strain. Unfortunately, while the March 2009 VA contract examiner noted the Veteran's reported military related injury to the right shoulder, no opinion was provided as to the etiology of the right shoulder strain. Pursuant to the April 2014 Board remand, the Veteran was afforded another VA examination in September 2015. Significantly, the examiner was asked to opine as to whether it was at least as likely as not that the Veteran's currently diagnosed right shoulder disorder, including but not limited to right shoulder strain (or any other right shoulder disorder diagnosed on examination) is related to his period of active service and/or Reserve service, to include but not limited to, his reported military related injury in June 2006 and/or his reported in-service right shoulder surgery in April 2008. The examiner was instructed to consider the Veteran's complaints of continuity of symptoms since discharge from service. Upon examination of the Veteran, the September 2015 VA examiner diagnosed labral tear, including superior labral anterior-posterior lesion, of the right shoulder beginning 2012. The Veteran told the examiner that he injured his right shoulder in 2006 and had no previous problems with his right shoulder with the exception of a clavicle fracture at the age of 10. He reported that he underwent right shoulder surgery in 2008 and that a portion of the clavicle was removed. The Veteran underwent right shoulder surgery again in 2011. The examiner opined that the Veteran's currently diagnosed right shoulder disorder is less likely as not related to his period of active service and/or Reserve service. Specifically, the examiner wrote that the Veteran had no right shoulder problem as indicated in the following year after the active duty. The examiner also wrote that the Veteran had no recurrent right shoulder problem in service. Unfortunately, the Board finds that the September 2015 VA examination is inadequate. While the September 2015 VA examiner indicated that there was no right shoulder problem in the year following active service, the Board notes that this statement is inaccurate as the Veteran did have a right shoulder disability within one year after service. As above, the Veteran was diagnosed with a right shoulder strain in March 2009, just one month after discharge from his most recent period of service. The examiner also indicated that the Veteran had no recurrent right shoulder problem in service. However, the Board finds that this statement is also inaccurate as it appears that the Veteran had surgery on his right shoulder during his most recent period of active service. Significantly, while there are no definitive records confirming an in-service right shoulder surgery, a preponderance of the evidence suggests that the Veteran did, in fact, have surgery on his right shoulder in 2008 and, as above, the Veteran had active service from February 2008 to February 2009. Furthermore, the March 2009 VA contract examination noted a scar from a 2008 right shoulder surgery. In sum, it appears that the examiner did not consider all of the evidence of record. Upon review of the evidence, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for a right shoulder disorder is warranted. In this regard, the Board finds that the competent and credible lay evidence clearly shows that the Veteran injured in shoulder in June 2006 while on ACDUTRA. Moreover, the evidence shows that the Veteran underwent shoulder surgery during his most recent period of active service as documented by a surgical scar at the March 2009 VA examination. Significantly, the Veteran was diagnosed with a right shoulder strain within a month of his discharge from his most recent period of active service. Given the evidence of in-service injuries, the Veteran's statements of continuing symptomatology, and a diagnosis of a right shoulder disorder shortly after his discharge from service, the Board finds that the evidence suggests a nexus between the Veteran's current right shoulder disorder and the injury in service. While the September 2015 VA examiner provided a negative nexus opinion and there is no medical opinion linking the Veteran's current right shoulder disorder to his military service, the Board finds that remand for an additional VA examination and opinion would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not warranted. Indeed, obtaining such additional evidentiary development this instance would only result only in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board must conclude that the evidence is in at least a state of equipoise and service connection for a right shoulder disorder, currently diagnosed as labral tear, including superior labral anterior-posterior lesion, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right shoulder disorder, currently diagnosed as labral tear, including superior labral anterior-posterior lesion, is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A 38 C.F.R. § 3.159. Initially, in a June 2013 rating decision, the RO denied service connection, in part, for arthritis of all joints, night sweats, headaches, and fatigue as secondary to the Veteran's service-connected Lyme disease. Thereafter, in August 2013 (within one year of notification of the June 2013 rating decision), the Veteran entered a notice of disagreement with the AOJ as to the denial of these claims. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on these issues is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Also, the Veteran contends that his service-connected Lyme disease is worse than initially rated and that he is entitled to a higher disability rating. The Veteran's Lyme disease is evaluated as non-compensable under 38 C.F.R. § 4.88b, Diagnostic Code 6319. Under Diagnostic Code 6319, active Lyme disease will be assigned a 100 percent disability rating. If inactive, the disability will be rated by evaluation of "residuals such as arthritis under the appropriate system." 38 C.F.R. § 4.88b. Private treatment records show that the Veteran was diagnosed with Lyme disease in October 2008 after presenting with body rash and joint pain. During the May 2011 Board hearing, the Veteran reported loss of energy, fever/chills, muscle and joint pain, severe fatigue, neurological changes including memory loss and/or mood disorders, and troubles with tachycardia (rapid heartbeat). The Veteran testified that these symptoms were all classic symptoms of Lyme disease. A VA contract examination regarding his Lyme disease in March 2009 found that the Veteran's symptoms of Lyme disease were currently in remission. A more recent VA examination in September 2015 also found that the Veteran's Lyme disease was in remission. Specifically, the examiner wrote that the Veteran's Lyme disease is most likely inactive since he was treated with antibiotic in early localized stage and labs showed resolution of the condition. He has no history of neurological or cardiac condition or sequelae since he was treated in early stage and not in late or disseminated stage. The muscle and joint pain and severe fatigue are common clinical features seen in early localized disease. During the first days or weeks of infection, patients with early, localized, or disseminated Lyme disease often also have nonspecific signs and symptoms resembling a viral syndrome as indicated in medical literature. The examiner opined that the Veteran's current joint pain seems consistent with aging process related to degenerative joint disease of several joints. The degenerative joint disease is not seen as sequelae of Lyme disease. There is no evidence of any inflammatory arthritis or Lyme arthritis as seen in x rays and labs provided by outside medical records. Regarding his fatigue, the examiner opined that it was at least as not likely due to a sleep disorder that should be evaluated. The examiner indicated that the Veteran had been able to do his job and activities. He did not meet the criteria for post Lyme disease since he had evidence of degenerative joint disease and possible sleep apnea. As above, the Board has referred claims of entitlement to service connection for a heart disability and sleep disorder to the AOJ. The Board has also remanded the issues of entitlement to service connection, in part, for arthritis of all joints, night sweats, headaches, and fatigue as secondary to the Veteran's service-connected Lyme disease pursuant to Manlincon. Given that the rating criteria for the Veteran's service-connected Lyme disease contemplates the referred and remanded claims noted above, the Board finds that the issue of entitlement to an initial compensable disability rating for Lyme disease is inextricably intertwined with the referred claims of service connection for a heart disability and sleep disorder and the remanded claims of service connection for arthritis of all joints, night sweats, headaches, and fatigue. Therefore, the Board may not properly review the Veteran's claim for entitlement to to an initial compensable disability rating for Lyme disease until the AOJ develops and adjudicates the referred and remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Holland v. Brown, 6 Vet. App. 443, 445-46 (1994). Accordingly, the case is REMANDED for the following action: 1. A statement of the case, containing all applicable laws and regulations, on the issues of entitlement to service connection for arthritis of all joints, night sweats, headaches, and fatigue as secondary to the Veteran's service-connected Lyme disease must be issued to the Veteran and his representative. He should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to these issues is perfected within the applicable time period, then such should return to the Board for appellate review. 2. After completing the above (to include adjudication of the referred claims of entitlement to service connection for a heart disability and sleep disorder) and, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for an initial compensable disability rating for Lyme disease should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 2014). ______________________________________________ J.N. MOATS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs