Citation Nr: 1804857 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-20 634 ) 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 disability. 2. Entitlement to an initial compensable rating for a skin disability, diagnosed as contact dermatitis and eczema. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to May 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The July 2012 rating decision on appeal is unclear as to whether the RO considered the Veteran's previously denied claim for service connection for a right shoulder disability to be reopened. In either case, however, the Board must determine on its own whether new and material evidence has been submitted to reopen the Veteran's claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran's claim was denied in an August 1988 rating decision on the basis that his right shoulder disability existed prior to service and was not aggravated by service. The August 1988 decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b) (2017). In connection with the Veteran's claim to reopen, he has described, to include at his December 2016 hearing, various duties he performed during service which he contends aggravated his right shoulder condition. He has also provided further details regarding what he has claimed was inadequate treatment for his condition during service. Under these circumstances, the Board finds that new and material evidence has been received sufficient to reopen the Veteran's previously denied claim. See 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REMAND The Board finds that additional development is required before the Veteran's claims are decided. Service connection for a right shoulder disability The Veteran has contended he has a current right shoulder disability that was either incurred in or aggravated by service. Specifically, although the Veteran has acknowledged he had a history of right shoulder injuries prior to service, he has contended that an in-service right shoulder dislocation, and the inadequate nature of treatment received for the dislocation, caused an aggravation of his pre-existing condition. The Veteran has also asserted that he has had neurological symptoms since the in-service dislocation. At this juncture, the Board notes a 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2015); 38 C.F.R. § 3.304 (b) (2017). Only such conditions as are recorded in examination reports are to be considered noted. Id. The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that a veteran's disability both pre-existed service and was not aggravated by service. Id. Once the presumption of soundness upon entry is rebutted, the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the pre-existing condition. See 38 U.S.C.A. § 1153 (West 2015); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims has explained that clear and unmistakable evidence means the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). The Veteran's service treatment records (STRs) include a July 1986 medical examination prior to enlistment, in which a history of surgery related to a left shoulder dislocation was noted. No history of right shoulder symptoms or conditions was noted. However, pursuant to a July 1987 screening and review of the entrance examination, a history of bilateral shoulder injuries prior to service was noted. In November 1987, the Veteran reported his right shoulder was dislocated in his sleep, and he reported a history of approximately ten right shoulder dislocations prior to service. The Veteran was subsequently medically discharged due to recurrent right anterior shoulder dislocations. The Medical Board Report included a finding that the condition existed prior to entry, and was not aggravated by service. The Veteran was afforded a VA examination in July 2012. The examiner noted the Veteran's STRs showed he had a history of about ten episodes of dislocation of the right shoulder prior to service. On this basis, the examiner determined the Veteran's right shoulder condition clearly and unmistakably pre-existed service, but also that the condition clearly and unmistakably was not aggravated beyond its natural progression by service. Upon a review of the foregoing, the Board has determined the Veteran's recurrent right shoulder dislocation disability clearly and unmistakably pre-existed service. Specifically, although the condition was not noted upon entry, the Board finds the Veteran's reported history of the condition shortly thereafter, as well as the findings of the members of the Medical Board and July 2012 VA examiner are sufficient to rebut the presumption of soundness upon entry. The Board next notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran's lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Upon a review of the July 2012 examination report, the Board notes the examiner failed to explain why, although the Veteran's right shoulder had dislocated on several occasions prior to service, the condition could not have been aggravated beyond its natural progression by an additional, in-service dislocation, to include a failure by treatment providers to re-set the shoulder for several hours, as described by the Veteran. In addition, the Board notes the VA examiner did not have the opportunity to address the Veteran's statements to the effect that his in-service dislocation coincided with neurological symptoms, as these statements were submitted to VA subsequent to the examination. Under these circumstances, the Board finds the July 2012 VA examination report is inadequate for adjudication purposes. As such, a remand is warranted in order to obtain an additional VA examination and opinion. Initial compensable rating for a skin disability The Veteran was afforded a VA examination in July 2012. The examiner diagnosed contact dermatitis and other eczema, and noted the condition affected the neck, along the collar line. The condition was noted to cover less than five percent of the total body and less than five percent of the exposed area, and to require treatment with topical corticosteroids. The Veteran was afforded an additional VA examination in May 2016. The examiner noted the Veteran's condition affected a single area of the neck and required constant or near-constant use of topical corticosteroid cream. In a June 2016 statement, the Veteran asserted that his VA examinations had not been conducted at times when his skin condition was "extreme." He described flare-ups of the condition which he stated were extremely painful and, at times, unbearable. At his December 2016 hearing, the Veteran again emphasized the severity of his condition during flare-ups, and further asserted that the skin condition periodically spread to the backs of his legs, under his arms, his groin region, his back, and other joint areas. He also stated he continued to use topical corticosteroid cream on a daily basis. In February 2017, the Veteran submitted photographs which appear to show a skin condition affecting various areas of the body. Upon a review of the foregoing, it is unclear whether the VA examinations discussed above were performed at times during which the severity of the Veteran's skin condition could be adequately assessed. In addition, the Board notes the VA examiners did not have the opportunity to review the photographs submitted by the Veteran in February 2017, which show his skin condition may affect areas other than the neck. Under these circumstances, the Board finds a remand is warranted for an additional VA examination, in order to ensure the severity of the Veteran's skin condition is fully and accurately assessed. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination to determine the nature and etiology of his right shoulder disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all orthopedic right shoulder disabilities present during the period of the claim. In this regard, the examiner is advised the Board has determined the Veteran's recurrent right shoulder dislocation disability existed prior to service. With regard to each identified disability, the examiner must state whether the disability clearly and unmistakably (undebateably) underwent no permanent increase in severity (beyond its natural progression) during or as a result of the Veteran's service. In providing this opinion, the examiner must address the Veteran's statements to the effect that he engaged in heavy lifting and overhead work during service while working on diesel engines and other equipment, and that following an in-service dislocation of his right shoulder, his treatment included elevation of his arm for several hours, until he alerted medical staff his arm had turned purple, at which time the shoulder was put back in place. The examiner should also identify any neurological disabilities affecting the right upper extremity. With regard to each identified disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran's military service and whether any neurological disability is secondary to a recurrent right shoulder disability. In providing his or her opinion, the examiner must address the Veteran's statements to the effect that following an in-service dislocation of his right shoulder, his treatment included elevation of his arm for several hours, until he alerted medical staff his arm had turned purple, at which time the shoulder was put back in place, and that since this time, he has suffered from neurological symptoms, necessitating the use of Gabapentin. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Following completion of step 1 above, afford the Veteran a VA examination to assess the severity of his service-connected skin disability. The examiner should specifically address what percentage of the Veteran's entire body and what percentage of the exposed areas are affected by his skin condition during flare-ups. In providing this assessment, the examiner must address the Veteran's lay statements describing his condition during flare-ups, as well as the photographs submitted by the Veteran in February 2017. The examiner should also address whether the Veteran's daily use of corticosteroid cream may be considered a "systemic therapy." The examiner must supply a rationale in support of his or her conclusion. Finally, the examiner should state whether the Veteran has any scars related to his service-connected skin condition. If so, the examiner should make a full assessment of all relevant scars pursuant to VA rating criteria. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Undertake any other development determined to be warranted. 5. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).