Citation Nr: 1754323 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 08-28 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bicipital tendon tear with bicep muscle injury as secondary to the service-connected disability of left shoulder hemiarthroplasty. 2. Entitlement to increased ratings for a left shoulder disability (hemiarthroplasty) (previously referred to as calcific tendonitis) rated as 10 percent disabling prior to March 10, 2011; rated as 30 percent disabling effective March 10, 2011; rated as 100 percent disabling effective February 22, 2012; and rated 20 percent disabling effective April 1, 2013. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to September 1981. The issues of entitlement to increased ratings for a left shoulder disability and entitlement to a TDIU were before the Board in December 2010, at which time they were remanded for further development. At the time of the December 2010 Remand, the Veteran's left shoulder disability was rated as 10 percent disabling. The RO issued two April 2012 rating decisions in which it granted a 30 percent rating effective March 10, 2011; a 100 percent rating effective February 22, 2012 (the date that the Veteran underwent surgery); and a 20 percent rating effective April 1, 2013. Consequently, there are multiple time periods for consideration. By way of a July 2013 rating decision, the RO granted service connection for surgical scars to the left shoulder and left knee. With respect to the issues of entitlement to increased ratings for a left shoulder disability and entitlement to a TDIU, the Veteran presented testimony at a Board hearing in September 2010. A transcript of the hearing is associated with the claims folder. Regarding the issue of entitlement to service connection for bicipital tendon tear with bicep muscle injury, the Board notes that in his July 2016 VA Form 9, the Veteran requested a videoconference hearing. However, he has since submitted an August 2017 VA Form 9 (applicable to all issues in which a statement of the case or supplemental statement of the case has been issued) in which he stated that he did not want an optional Board hearing. Additionally, in September 2017, the Veteran acknowledged VCAA notice by stating that he has no other information or evidence to support his claim. He elected to have his claim decided as soon as possible. The Board therefore considers the Veteran's request for a videoconference hearing to be withdrawn. Moreover, the Board notes that it is deciding the issue in the Veteran's favor and thus the Veteran does not need to present testimony. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to increased ratings for a left shoulder disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's bicipital tendon tear with bicep muscle injury is proximately due to a service connected right knee disability. CONCLUSION OF LAW The criteria for an award of service connection for bicipital tendon tear with bicep muscle injury have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). The Veteran has alleged that his left bicipital tendon tear with bicep muscle injury is secondary to his left shoulder disability. The RO obtained a medical opinion in February 2016. The examiner reviewed the Veteran's medical records via VBMS. The examiner opined that the Veteran's left biceps tendon/muscle tear was less likely than not due to or the result of his service connected left shoulder disability. He reasoned that with regards to the left tendon/muscle injury, the Veteran's "RIGHT knee 'gave out', causing him to extend his [left upper extremity], which he then fell on, causing rupture to LEFT biceps muscle/tendon." He stated therefore that the Veteran's left bicep muscle/tendon injury was not related in any way to his left shoulder surgery. The Board notes that the Veteran is service connected for right knee instability status post anterior cruciate ligament reconstruction. The disability is rated as 30 percent disabling based on manifestations of severe recurrent subluxation or lateral instability (see August 2006 rating decision). Consequently, while the February 2016 medical opinion found that the Veteran's left bicipital tendon tear with bicep muscle injury was not secondary to a service connected left shoulder injury, the medical opinion linked the injury to a fall caused by the service connected right knee disability. Affording the benefit of the doubt to the Veteran, the evidence is at least in equipoise as to whether the Veteran's left bicipital tendon tear with bicep muscle injury is secondary to his service connected right knee disability. Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). The Board notes that an RO letter dated December 2015 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Entitlement to service connection for bicipital tendon tear with bicep muscle injury is granted. REMAND Left shoulder The Board remanded this claim in December 2010, in part, so that the Veteran could undergo a VA examination. This occurred in August 2015. The Veteran's representative submitted a September 2017 brief contending that a new examination is warranted since the two year old examination is not reflective of the Veteran's current disability. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In this case, the Board notes that the August 2015 VA examiner found that the Veteran was able to achieve left shoulder flexion from 0 to 80 degrees. In an August 2017 VA Form 9, the Veteran stated that over the years, his shoulder disability has worsened and that he cannot raise his arm out more than "30 degrees or so." The Board notes that the Veteran is therefore reporting symptoms more severe than reflected in his most recent examination. Accordingly, another examination should be arranged, to reflect the current level of severity of the left shoulder symptoms. TDIU The Veteran's claim for a TDIU is inextricably intertwined with the issue of whether an increased rating is warranted for the service connected left shoulder calcific tendonitis. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA orthopedic examination for the purpose of determining the current severity of his left shoulder disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any special tests deemed medically advisable should be conducted. Range of motion testing should be conducted, and if possible, the examiner should report (in degrees) the point in range of motion testing where motion is limited by pain. The examiner must test and record the range of motion for in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If possible, the examiner should also offer an opinion as to the degree of additional functional loss (if any) due to weakness, fatigue, and incoordination, including during flare-ups. The lack of opportunity to directly observe a flare-up is an insufficient basis for finding it speculative to report an estimate as to additional functional limitation. The examiner should express the additional functional limitation in terms of the degree of additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. 2. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs