Citation Nr: 1628909 Decision Date: 07/20/16 Archive Date: 08/01/16 DOCKET NO. 15-06 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether a previously denied claim for service connection for a left shoulder disability, to include degenerative arthritis post total replacement, should be reconsidered. 2. Entitlement to service connection for a left shoulder disability, to include degenerative arthritis post total replacement. REPRESENTATION Appellant represented by: Joel Ban, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty for training from July 1988 to November 1988, and on active service from December 2006 to May 2007, and from January 2009 to July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Service connection for a left shoulder disability was initially denied in an April 2010 rating decision. The Veteran did not appeal that decision, and it became final. In November 2012, the Veteran filed this claim to reopen based upon new and material evidence. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2015. A transcript of the hearing is of record. The Veteran submitted additional evidence in support of his claim at his October 2015 hearing, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2015). FINDINGS OF FACT 1. In an April 2010 rating decision, the RO denied service connection for a left shoulder disability. The Veteran did not timely appeal that decision or submit new and material evidence within one year of that decision. 2. New evidence associated with the claims file since the April 2010 denial of the claim for service connection for a left shoulder disability, includes relevant official service department records not previously considered. 3. Clear and unmistakable evidence demonstrates that a left shoulder injury preexisted active duty service, but the evidence is not clear and unmistakable that the disability was not aggravated during service or that any increase in severity was due to the natural progress of the disorder. CONCLUSIONS OF LAW 1. The April 2010 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2015); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. The criteria for reconsideration of the claim for service connection for a left shoulder disability have been met since evidence received since the April 2010 RO decision includes service treatment records not previously considered. U.S.C.A. § 5108, 7105 (West 2015); 38 C.F.R. § 3.156 (2015). 3. The criteria for establishing entitlement to service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In light of the fully favorable decision as to the issue of service connection for a left shoulder disability, no further discussion of compliance with VA's duty to notify and assist as to that issue is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Reconsideration Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c). The RO denied the Veteran's claim for service connection in April 2010 finding that the evidence did not show there was any left shoulder injury or any in-service treatment that would have aggravated the Veteran's previously diagnosed left shoulder disability. The Veteran did not appeal the rating decision nor was new and material evidence received within one year, accordingly, the decision became final. Subsequent to the April 2010 rating decision, service department records dating from July 2004 through May 2009, were associated with the claims file. These records included pre-deployment health assessments which described the condition of the Veteran's left shoulder disability prior to his deployment. The Board finds that the Veteran is entitled to reconsideration of his original claim as these service treatment records fall within the exception created by 38 C.F.R. § 3.156(c). The service records from July 2004 through May 2009 contained information about the Veteran's left shoulder disability that was relevant to his claim. Accordingly, the Veteran's claim is entitled to reconsideration, and an analysis of the claim in light of 38 C.F.R. § 3.156(a) is unnecessary. Service Connection for Left Shoulder Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1101. With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). When an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, the governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service; (2) and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b) ("Only such conditions as are recorded in examination reports are considered as noted"). If a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the claimant, not VA, to establish aggravation. Wagner, 370 F.3d at 1096. A preexisting injury or disease will be considered to have been aggravated during 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(a). The presumption of aggravation applies only when pre-service disability increases in severity during service, although the degree of worsening may not be enough to warrant compensation. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability); Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994) ("temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened"). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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; 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). The Board noted that the Veteran does not claim, and the evidence does not reflect, that his disability is the result of combat with the enemy. Therefore, the combat provisions of 38 USCA § 1154(b) (West 2015) are not applicable. The Veteran contends that his left shoulder disability, which preexisted service, was aggravated by activities completed while in service. He contends that symptoms related to his shoulder disability worsened as a result of his service. The Veteran first had orthoscopic surgery on his shoulder in July 2006. In an August 2006 Periodic Health Assessment, the Veteran's shoulder surgery was noted but he was found to be eligible to return to full duty. After the surgery, in a November 2006 Pre-Deployment Health Assessment, the Veteran was found to be fit for deployment and had no abnormalities noted. In his December 2006 Report of Medical History, the examiner noted the Veteran's surgery, but found no problems and noted only minor left shoulder pain. Subsequently, the Veteran entered service in December 2006. During his period of service for which he served until May 2007, the Veteran did not report any injuries while in service. However, the Veteran did report that during his deployment, combat training and related exercises worsened his condition. At the time of separation, the Veteran was physically qualified for separation from active duty. No defects were noted that would have disqualified the Veteran from performance of his duties. In October 2008, the Veteran had a diagnostic arthroscopy and labral debridement performed. After that procedure, the Veteran reported that he had excellent strength. In a December 2008 Report of Medical History, the Veteran's surgeries were noted as well as the arthritis in his left shoulder, however he was found eligible to be released for return to full duty. In January 2009, the Veteran entered active duty service. In April 2009 and May 2009, the Veteran experienced seizures. In a subsequent June 2009 medical assessment, the Veteran indicated that his health had worsened since this last physical examination. In July 2009, the Veteran separated from service. In a September 2009 VA examination, the examiner noted that the Veteran had bone spurs and a torn bicep on his left shoulder, in addition to his diagnosis of arthritis post-surgical repair. The examiner noted that the Veteran reported having these injuries due to wearing and lifting body armor while in service. The Veteran also reported symptoms of weakness, stiffness, and swelling. His condition did not result in incapacitation, but he did report limitation in his ability to exercise and perform certain activities. The examiner diagnosed the Veteran with degenerative arthritis and chronic shoulder pain. In the Veteran's November 2012 claim to reopen, the Veteran again attributed his shoulder disability to aggravation due to physical training while in service. He reported a worsening of his condition from 2009-2011, and sought the assistance of an orthopedic who recommended a total joint replacement procedure to alleviate his pain. The Veteran asserted specifically that his left shoulder injury was incurred and aggravated by multiple combat deployments where he was required to carry heavy combat loads, had constant physical training, and had to carry loads on his shoulder in excess of 100 pounds. In December 2012, the Veteran's medical provider opined that it was as likely as not that the Veteran's current diagnosis of left shoulder degenerative joint disorder was the result of an injury he had in service. The provider based his opinion on an examination and review of the Veteran's medical records, and found that due to his injury in service and the excessive loads he had to carry on his shoulder, his shoulder injury was service-connected. In the November 2013 VA examination, the Veteran was diagnosed with left shoulder replacement with residual scars, left shoulder strain, and left arthroscopy with residual scars. The examiner noted that the Veteran had undergone a complete replacement surgery due to a destroyed shoulder joint in November 2011. The Veteran reported flare ups of increased pain which impacted his shoulder function. The examiner opined that it was more likely than not that the Veteran's current left shoulder condition represented a progression of a shoulder condition that was initially treated between 2003 and 2006. The examiner's rationale was that the Veteran's symptoms began after 2003, after which he required two separate procedures to treat his symptoms. Although the Veteran was found fit for deployment, that did not mean the Veteran was cured as the shoulder is a complex joint and veterans also put up with pain in order to continue in service. The Veteran's shoulder replacement surgery relieved some of the Veteran's pain and improved his shoulder function, however the examiner noted that shoulder conditions take more time to improve and are subject to recurrence. The examiner also opined that it was more likely than not that the Veteran's current shoulder condition was a progression of the condition he had in 2006 and in 2008, due to his activities in service. His rationale was that because the Veteran had to do vigorous exercises for physical training and wear heavy backpacks, this contributed to his shoulder strain and injury. He explained that because the shoulder rotator cuff was made of 7 different structures, a disease or injury to 1 would affect the remaining 6. The examiner concluded by stating that the Veteran's current condition was not independent, and was related and due to the Veteran's previous shoulder conditions. In the hearing conducted in October 2015, the Veteran testified that he noticed his shoulder disability when he would do physical training that was recommended in order to maintain his fitness. He also testified that he experienced more difficulties with his shoulder in 2007 when he would have to do exercises that involved carrying a 100 pound ruck sack. The Veteran testified that he did not seek treatment while in service but he did report his pain to the medical unit to obtain pain medication or ice. He then testified that while he was having a seizure at the airport, he had fallen and landed on his left shoulder, causing more damage. After the Veteran separated from service, his pain worsened at which time he underwent his shoulder replacement surgery. In October 2015, the Veteran also submitted a letter from Dr. Burkett, a physician and disability analyst, who had reviewed his case and medical history. The physician opined that the Veteran's current shoulder disability was aggravated and caused by his activities while in service. He also found that the other medical opinions submitted were also accurate in their assessment that the Veteran's left shoulder pathology was more than likely aggravated or caused by activities that occurred while in service. A left shoulder disorder was not noted by an examiner at the time the Veteran entered either period of active duty. Accordingly, the presumption of soundness applies. However, the Veteran's left shoulder injury clearly and unmistakably preexisted service, and the evidence shows there was an aggravation of the disability during service which was not due to the natural progression of the disease. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran's August 2006 Health Assessment and December 2006 Report of Medical History clearly noted the Veteran's left shoulder disability and that he had an orthoscopic surgery performed. Similarly, prior to the start of the Veteran's second period of active duty service in January 2009, his December 2008 Report of Medical History also noted both his prior and more recent shoulder surgeries as well as his diagnosis of arthritis. A private medical record dated in November 2008 also noted that the Veteran had a left shoulder injury in October 2008 and an open subacromial decompression two years earlier. As such, the Veteran's disability was clearly of record prior to the Veteran's entry into service, and thus clearly and unmistakably preexisted his activity duty service. The evidence of record also shows an aggravation of the Veteran's preexisting shoulder disability, as there was an increase in the level of the Veteran's disability due to service. During the Veteran's second period of active duty service, there was evidence that the Veteran's shoulder disability worsened. In a June 2009 assessment, the Veteran reported that his health had worsened since his last examination. The Veteran also experienced seizures in April and May 2009, one of which resulted in a fall that affected his shoulder. The most compelling evidence that shows an aggravation of the Veteran's shoulder disability is the November 2013 VA examination and accompanying medical opinion. The examiner specifically opined that it was more likely than not that the Veteran's current shoulder disability represented a progression of the shoulder disability which existed at the time he entered service. The examiner specifically noted that although the Veteran was found fit for service, this did not mean that the Veteran's shoulder was cured as the shoulder is a complex joint, and it was very likely that the Veteran put up with pain in order to continue service. The examiner also supported the Veteran's assertion that wearing heavy backpacks and having to do vigorous exercises for physical training were the in-service activities that lead to the aggravation of his shoulder disability. The examiner found that these activities would have contributed to the Veteran's existing shoulder strain and injury, and explained that because the shoulder is made up of 7 different structures, an injury to one structure would affect the remaining 6. Thus, because the examination and opinion contain clear conclusions connected to supporting data by a reasoned analysis, they are highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that due to the findings of the examination and opinion, the Veteran's left shoulder disability was aggravated in service, and thus service connection is warranted. Similarly, the Veteran's own account of activities that occurred in service that aggravated his preexisting left shoulder disability should also be accorded significant weight. The Veteran submitted statements and testified in the October 2015 hearing that having to carry heavy backpacks and having to undergo extensive physical training in preparation for service, aggravated his left shoulder disability. While the Veteran does not have the medical expertise to determine whether these activities could aggravate his shoulder disability, he is competent to testify that these activities did occur while in service since he was present and had knowledge of the facts during that time. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's statements as to his activities in service are credible as they were internally consistent and plausible. See Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995). Thus, the Veteran's statements regarding activities he did in service are probative and should be accorded significant weight. In sum, the evidence of record demonstrates that the Veteran's left shoulder disability clearly and unmistakably preexisted service, as it was of record in the Veteran's pre-deployment health assessments. He submitted credible lay statements and testified that during service he was required to carry heavy backpacks and engage in vigorous exercise which affected his left shoulder and resulted in a worsening of symptoms. Medical opinions of record, including a November 2013 VA opinion, all confirm and substantiate the Veteran's assertion that his preexisting left shoulder disability was aggravated by service. In sum, the evidence is not clear and unmistakable that the pre-existing disorder was not aggravated during active duty or that any increase was due to the natural progress of the disorder. Moreover, the evidence shows that the Veteran's current disability is related to the aggravation in service. As such, the Board finds that service connection for a left shoulder disability, to include degenerative arthritis post total replacement, is warranted. (CONTINUED ON NEXT PAGE) ORDER 1. Relevant and official service department records have been submitted to reconsider the claim for a left shoulder disability, to include degenerative arthritis post total replacement. 2. Entitlement to service connection for a left shoulder disability, to include degenerative arthritis post total replacement, is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs