Citation Nr: 1756915 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-03 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from January 2002 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California (hereinafter, Agency of Original Jurisdiction (AOJ)). The Board notes that the Veteran also appealed the issue of entitlement to service connection for chest pain, which was likewise denied in the September 2007 rating decision. However, in a subsequent rating decision September 2017, the AOJ granted service connection for a chest disability. As the Veteran was awarded service connection for this disability, the issue of entitlement to service connection for chest pain is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The case was previously before the Board, most recently in April 2016 when it was remanded for additional development. That development has been completed. The appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. The issue of entitlement to service connection for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's current left shoulder strain first manifested during active military service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks to establish service connection for a left shoulder disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 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 Veteran's contends that while in service during a physical training (PT) session, he was performing pull-ups when he heard and felt a pop to the left shoulder. He reports that he did not seek medical attention following this incident, but reports being unable to lift heavy objects or do pull-ups. As discussed above, the Veteran did not seek treatment for left shoulder injury. On a Report of Medical History in October 2003, he denied a history of a painful or trick shoulder. A November 2003 Report of Medical Examination indicated a normal clinical evaluation of the upper extremities. On examination in November 2004, the Veteran was assessed with normal upper extremities. On a Report of Medical History dated November 2005, he again denied a history of a painful shoulder. However, in a December 2005 Report of Medical History, the Veteran endorsed a history of shoulder pain explained as follows: During Corporal Leadership Course I hurt my shoulder during a PT session which caused me Not to be able to do pull-ups or lift heavy objects utilizing my shoulder for a few months. A December 2012 Report of Medical Assessment included the Veteran's description of shoulder pain during service. However, the examiner noted that the Veteran denied current complaints (c/o), and stated that the Veteran did not have "current/ongoing medical c/o except for TMJ." He was discharged in January 2006. The Veteran filed his service connection claim for left shoulder disability in April 2007. He first sought VA evaluation for left shoulder pain in 2009 wherein an x-ray report was unremarkable. In June 2010, the Veteran testified before a Decision Review Officer (DRO). He described experiencing left shoulder problems during physical training exercises until eventually he heard a loud pop of his shoulder when doing pull-ups. He didn't seek treatment as he was pending graduation. Thereafter, he described episodes of general soreness and stiffness with weather changes or lifting objects. He limited his activities to avoid these symptoms. A military physician, who was aware of the problem but also was aware of the Veteran's report that he continued to improve with pull-ups, told him not to worry about his left shoulder as it was already being treated by Motrin prescribed for other problems. In connection with the claim, the Veteran underwent VA examination in February 2012 to which the X-ray results revealed no acute bony abnormality in the left shoulder. The Veteran described limited lifting with his left arm in his current occupation as a food server. The examiner diagnosed the Veteran with a left shoulder strain with a date of diagnosis in 2004, but failed to opine as to the etiology of such condition. It was indicated that the Veteran's left shoulder impacted his ability to work as there was limited repetitive pushing or pulling with the left arm. The Veteran underwent additional examination in July 2014, where the report reflected that there was no present diagnosis of any left shoulder disability. Specifically, the examiner noted that the Veteran reported experiencing pain in one of his shoulders back in 2005; however at the time of the examination the Veteran was unable to recall which shoulder was involved. The examiner noted that the Veteran did not have any current complaints or problems with his shoulder. On physical examination the Veteran's shoulder was noted to be within normal limits. As was in 2012, this examination failed to provide any medical opinion. Thus, the Board remanded the case to obtain a new opinion. In May 2017 the Veteran was reexamined, to which the examiner noted that the Veteran indeed was diagnosed with a left shoulder strain. The examiner elicited testimony from the Veteran regarding his reported flare-ups, including increased symptoms with activity, and pain associated with abduction. The examiner concluded that the Veteran's left shoulder disability is less likely than not due to service and more likely due to activities after service. Particularly, the examiner based the decision on the July 2014 VA examination when the Veteran did not have any shoulder complaints, nor did he remember which shoulder was injured in 2005. Additionally, as the Veteran's range of motion measurements were within normal limits, and there were no records in the claims file showing the Veteran was seen for a shoulder condition besides the 2005 in-service medical history report and a 2009 radiograph, more than four years after service. The examiner attributed the condition to post-service, including the Veteran's occupation as a server. The Board finds that reasonable doubt exists as to whether the Veteran's currently diagnosed left shoulder strain first manifested in service. At the outset, the Board notes inadequacies in all examination reports obtained. The record is clear that the Veteran had a left shoulder injury in service as reported at separation. Specifically, at separation, the Veteran described the injury as causing limitations for "a few months." He denied being symptomatic at separation, but reported a left shoulder disability on his original application for VA benefits filed just over a year from separation from service. Based on his description of injury and symptoms thereafter, the February 2012 VA examiner offered a diagnosis of left shoulder strain with a date of diagnosis in service - 2004. At this time, the examiner found that the Veteran's left shoulder disability impacted his ability to work as there was limited repetitive pushing or pulling with the left arm. Unfortunately, the examiner did not provide any clarifying language regarding the ambiguity of whether the Veteran had manifested a chronic left shoulder strain since 2004. On the other hand, the July 2014 VA examiner found that the current left shoulder strain was unrelated to service. In arriving at this opinion, the examiner relied upon a factual history of having no left shoulder symptoms between 2005 and 2009, which is not consistent with the Veteran's description of symptoms during his June 2010 DRO hearing. The Board, having reviewed the hearing transcript in light of the entire evidentiary record, finds that the Veteran's description of symptoms at the DRO hearing is credible. As such, the July 2014 VA examiner's opinion has significantly reduced probative value as this examiner presumed that the Veteran's left shoulder was asymptomatic between 2005 and 2009. See Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinion based on an inaccurate factual premise has reduced probative value). Overall, when resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's description of his left shoulder symptoms since service discharge to be credible, and that the February 2012 VA examination report supports a finding that the Veteran's current left shoulder strain first manifested during active military service. In this respect, the February 2012 examination report can reasonably be construed as a finding that the Veteran currently had a left shoulder strain which had its onset in 2004. The claim, therefore, is granted. ORDER Service connection for left shoulder disability is granted. REMAND The Board finds that the July 2014 VA examination report, obtained as a result of a prior Board remand directive, is inadequate for rating purposes. At entry of service, in August 2001, the Veteran underwent an enlistment examination to which the examiner noted that the Veteran's feet were abnormal, as the Veteran was positive for mild asymptomatic pes planus. As the disorder was noted, the presumption of soundness does not attach, and service connection for bilateral pes planus may be considered only on the basis of aggravation during active service. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306. Where a disability is noted upon entry into service, however, a claimant cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder. In such cases, the burden falls on the Veteran to establish aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The service treatment records show no treatment for pes planus during the Veteran's active service. On a Report of Medical History in October 2003, the Veteran denied a history of foot trouble. A November 2003 Report of Medical Examination indicated a normal clinical evaluation of the feet. On a Report of Medical History dated November 2005, the Veteran again denied a history of foot trouble. However, in a December 2005 Report of Medical History, the Veteran endorsed foot trouble further explained as "Ingrown toenails." A December 2005 Report of Medical Assessment included the Veteran's description injury due to flat feet/fallen arches during service. However, the examiner noted that the Veteran denied current complaints (c/o). A January 2010 VA podiatry consultation included the Veteran's report of generalized bilateral foot and ankle pain since military service. He described his foot arches as having fallen over the years resulting in heel pain as well as pain across the balls of the feet. He had previously used orthotics. Examination resulted in a diagnosis of flexible pes planus bilaterally. At a hearing in June 2010, the Veteran testified to experiencing sharp foot and heel pains during service. He worked 12 hour walking shifts as a canine handler for a military police unit. Overall, the Veteran has provided testimony that his bilateral pes planus became symptomatic during service. The VA opinions provided do not take into account the Veteran's description of symptomatic pes planus in service and, as such, an additional opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since September 2017. 2. Thereafter, afford the Veteran examination with a podiatrist, if available, to determine whether his preexisting bilateral pes planus was aggravated during active military service. If a podiatrist is not available, an examination by an appropriately qualified examiner should be scheduled. Following examination and review of the claims folder, the examiner is requested to provide opinions: a) Whether it is at least as likely as not that the Veteran's mild, asymptomatic pes planus was aggravated during service? The examiner is instructed that temporary or intermittent flare-ups of a pre-existing disease during service is not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991) b) If the Veteran's pre-existing pes planus was aggravated during service, whether clear and unmistakable (undebatable) evidence establishes that the increased severity was due to the natural progress of the disorder? In providing this opinion, the examiner should consider the following: * the August 2001 enlistment examination report reflecting an assessment of mild, asymptomatic bilateral pes planus; * the Veteran's description of fallen arches on his December 2005 Report of Medical Assessment and April 2007 application for compensation benefits; * the January 2010 VA podiatry consultation wherein the Veteran reported generalized bilateral foot and ankle pain since military service, described his foot arches as having fallen over the years resulting in heel pain as well as pain across the balls of the feet treated with orthotics, and the resultant diagnosis of flexible pes planus bilaterally; * the June 2010 hearing testimony wherein the Veteran described working 12 hour walking shifts as a canine handler for a military police unit and experiencing sharp foot and heel pains during service; * the Board's factual finding that the Veteran's description of symptoms at the VA podiatry consultation and hearing in 2010 are credible and should be accepted as true although not documented in the service treatment records. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. The Veteran 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 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. §§ 5109B, 7112 (2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs