Citation Nr: 1804762 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-11 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to a rating in excess of 20 percent for low back pain with traumatic arthritis, L4 and lipping at L4-5. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. M. Johnson, Counsel INTRODUCTION The Veteran had active service in from May 1972 to May 1994. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Subsequently, jurisdiction of the Veteran's file was transferred to the RO in Oakland, California. A personal hearing was held in December 2015 before a Decision Review Officer (DRO) at the Oakland RO. A transcript of this hearing is of record. During the Veteran's December 2015 DRO hearing, he reported that he wished to withdraw the issues of entitlement to an increased rating for bilateral hearing loss (H.T. at p.37) and entitlement to service connection for bilateral elbow disabilities (H.T. at p.42). Withdrawal of these issues was noted at the December 2015 hearing and recognized in a March 2016 Supplemental Statement of the Case (SSOC) provided to the Veteran. Consequently, these issues are no longer on appeal. The issues of entitlement to an increased rating for a low back 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 Veteran's right shoulder arthritis is due to his period of active service. CONCLUSION OF LAW The Veteran's right shoulder arthritis is due to his active service. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection for a Right Shoulder Condition In October 2010, the Veteran submitted a claim for service connection for a right shoulder disability. The Veteran stated that, "During active duty, I had several medical problems that were not listed on my initial claim." The Veteran filed for several disabilities shortly after separating from service in 1994. He stated that he had been treating for right shoulder pain with a private physician since discharge. In support of his claim, the Veteran submitted records from E.N., M.D. The Veteran indicated that he had been receiving treatment from the physician since at least 2006. In September 2010, the physician stated that the Veteran had right shoulder bursitis that he had been treating for "several years" that was determined to be chronic and ongoing. The physician stated that the condition was "likely related to his prior military service." However, treatment records from January 2010 indicate that the Veteran had been referred for acute right shoulder pain related to an incident where the Veteran was installing a TV antenna and the Veteran had to grab onto an object on the roof to keep from falling. The Veteran was noted to have degenerative arthritis of the right AC joint at that time. In August 2013, the Veteran underwent a VA examination related to several conditions. The Veteran was diagnosed with degenerative changes at the AC joint. The examiner, however, only provided an opinion whether the Veteran's condition was secondary to his other service-connected conditions. The examiner noted that there was no anatomical dependence between the Veteran's right shoulder and his service-connected back and knee disabilities and concluded that his right shoulder arthritis was not caused by these conditions. In August 2016, a VA physical therapist noted that the Veteran had arthritis of his right shoulder and that he had retired as a jet mechanic after twenty years of service. The therapist stated that the Veteran was right hand dominant. In August 2017, a physician at the San Jose VA clinic stated that the Veteran had chronic right shoulder pain. The physician reported that the Veteran's condition resulted from an injury that the Veteran sustained in approximately 1989 when he fell out of a helicopter. The Veteran's service treatment records indicate that the Veteran reported diffuse arthralgia in his knees, shoulders, and back in January 1987. The symptoms were not reported to be due to trauma and were attributed to probable bronchitis. The Veteran's service treatment records are otherwise negative for reports of shoulder problems and his examination in December 1993 did not indicate any current shoulder disability. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a) (2017). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Here, the only medical opinion of record that addresses whether the Veteran's right shoulder arthritis is directly due to his active service is provided by E.N., M.D. While the evidence indicates that the Veteran was treated for an acute injury to the right shoulder in January 2010, the physician reported that he had treated the Veteran for right shoulder pain for several years before that injury and the physician opined that the Veteran's right shoulder condition was likely related to his duties in service. The Board notes the Veteran's duties as a jet mechanic for 20 years in the Navy (with a dominant right hand) likely would have led to significant stress on the Veteran's right shoulder and arm over the Veteran's period of service. As the Veteran's physician has provided evidence of a nexus between the Veteran's in-service duties and his diagnosis of right shoulder arthritis, the Board will resolve the benefit of the doubt in favor of the Veteran and find that service connection for right shoulder arthritis is warranted. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.102. ORDER Service connection for right shoulder arthritis is granted. REMAND In September 2017, the Veteran's representative argued that the examinations of the Veteran's low back disability have been inadequate to resolve the issue on appeal. The representative stated that the examinations of record have failed to provide sufficient information regarding the level of functional impairments during flare-ups as the examiners have stated that functional impairment during flare-ups could not be assessed without resorting to speculation, but that adequate rationales have not been provided for these opinions. The representative of the Veteran also stated that the examiners in December 2015 and August 2017 reported pain during range of motion testing, but information as to where painful motion began was not provided. Accordingly, the Board finds that a new VA examination should be provided that discusses any additional functional limitations during periods of flare-ups, if possible, and describes where evidence of painful motion is found during range of motion testing. With regard to TDIU, the Board finds that the claim for a TDIU is inextricably intertwined with the Veteran's remanded claim for an increased rating as any functional limitations found during the Veteran's examination for his low back disability could impact whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. Accordingly, the Board remands the Veteran's TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. First, undertake appropriate efforts to schedule the Veteran for a current VA examination to determine the severity, manifestations, and effects of his service-connected low back disability. The examiner must review the claims file in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. The examiner must provide an opinion regarding whether the Veteran's condition would result in additional functional limitations during periods of flare-ups and report where evidence of painful motion begins during range of motion testing. If the examination is not conducted during a period of a flare-up, the examiner must provide an estimated opinion of additional functional limitations based upon the evidence of record, including the Veteran's lay statements and medical evidence of record. If the examiner is unable to provide such an opinion, the inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. 2. After any other necessary development, readjudicate the Veteran's claims on appeal. If the claims remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. 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. §§ 5109B, 7112 (2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs