Citation Nr: 1805636 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-01 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left hip disability. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to April 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded in October 2014 and April 2017. The issues of entitlement to service connection for a left hip disability and a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence weighs against a finding that a right shoulder disability was incurred in active service or arthritis manifested within one year of separation from active service; any right shoulder disability present during the period of the claim, to include arthritis, is not etiologically related to military service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran contends that his current right shoulder disability began in active service and reports intermittent right shoulder pain began after an in-service injury. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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) (2017). To establish service connection, the evidence generally must show: (1) the existence of a present disability, (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Arthritis is considered by VA to be a chronic disease. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service treatment records (STRs) indicate the Veteran fractured his right clavicle in 1987, prior to active service, with no right shoulder abnormalities noted upon entrance. An August 1993 STR noted right shoulder pain for three days since lifting weights assessed as a possible muscle strain. Additional STRs report right shoulder pain onset in April 1996, after colliding with another player in football that improved with rest but was aggravated around November 1996 and assessed as right shoulder impingement. A December 1996 STR noted slight decrease in the range of motion with grinding with overhead arm movements, a radiologist report confirmed an old healed fracture of the clavicle and the Veteran was placed on profile in January 1997 for a provisional diagnosis of chronic right shoulder pain. A February 1997 STR noted 70 percent improvement since the initial evaluation with increased range of motion and decreased pain and assessed improving right shoulder impingement syndrome. Initially, the Board finds the preponderance of the evidence is against a finding that the Veteran's right shoulder arthritis diagnosed in a January 2010 VA examination was incurred during active service or within one year of separation from service. STRs do not note any treatment or diagnosis for right shoulder arthritis; specifically, a January 1997 STR noted only a healed clavicle fracture on X-ray. Moreover, the medical evidence indicates right shoulder arthritis was first diagnosed in January 2010, more than one year after the Veteran's separation in April 1997. As such, the probative evidence of record establishes that the Veteran's right shoulder arthritis was not present in service or within one year of separation from active service. Rather, the evidence demonstrates that arthritis began around January 2010 and the Veteran has not alleged that he was diagnosed or treated for arthritis in service or within one year after his April 1997 discharge from service. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. Further, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right shoulder disability had onset in service or is otherwise related to service. Specifically, the Board finds the April 2017 VA medical opinion obtained pursuant to the April 2017 remand directives to be highly probative evidence against the claim. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). The opinion reflects a review of the Veteran's claims file, to include the Veteran's lay statements, and provides a persuasive rationale that the current right shoulder disability is unrelated to treatment for right shoulder problems in active service. The examiner explained that the right shoulder disorders in service resolved and any current right shoulder disability could not reasonably be related to the in-service complaints because there was a 14 to 16 year gap in treatment despite the Veteran's treatment for left shoulder problems during that same time span and due to the Veteran's multiple other factors in the intervening years, such as age and occupational, daily, and injury activities. The examiner acknowledged the Veteran's treatment and complaints of right shoulder pain, impingement, and possible muscle strain in his service records, including a notation of chronic right shoulder pain, but was still unable to provide a positive opinion based on review of the Veteran's medical records since 1998. The examiner explained that a right shoulder condition was not addressed until 2014 although the Veteran sought treatment for a left shoulder disorder since 2009 such that the examiner did not find continuous symptoms since service. The April 2017 medical opinion is consistent with other evidence of record, to include a December 2014 VA examination and medical opinion finding in-service right shoulder complaints were acute and noting no objective evidence of a chronic right shoulder condition until a 2009 VA examination, as well as the January 2010 VA medical opinion noting a lack of objective evidence that a current right shoulder disability was a chronic condition. VA medical records also support that the Veteran was treated for bilateral shoulder impingement in 2014. Further, although the Veteran reported right shoulder pain in an August 2012 VA treatment record, he indicated it began three weeks prior and worsened while lifting or working. The Board acknowledges the Veteran's lay statements of intermittent right shoulder pain since service and that his current right shoulder disorder is related to his in-service treatment for right shoulder pain and impingement. Although the Veteran may sincerely believe that a right shoulder disability is related to service, there is no indication that he has the training or experience required to render a competent opinion linking the disorder to service. See Jandreau, 492 F.3d at 1377. The Board finds the VA examiner's opinion to be the most probative evidence of record. Notably, the VA examiner was aware of the Veteran's reported history yet was unable to offer a positive opinion after a review of the Veteran's complaints and history. In summary, the preponderance of the evidence is against a finding that the Veteran's right shoulder disability was caused or aggravated by service. Thus, the claim for service connection is denied. ORDER Service connection for a right shoulder disability is denied. REMAND The Board's review of the record reveals that further development is warranted before the remaining claims on appeal are decided. Specifically, additional medical opinions on the nature and etiology of the Veteran's left hip and right knee disabilities are required that account for all relevant evidence of record. The April 2017 remand directed that a VA medical opinion assess the nature and etiology of current left hip and right knee disabilities in light of in-service treatment for left hip and right knee symptoms in service, medical evidence indicating treatment in 2001 for left hip pain and in 2009 for right knee pain, and the Veteran's competent statements of pain since service. As discussed below, the Board finds the subsequent development was not adequate. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds the VA medical opinions obtained in April 2017 are insufficient because the conclusions that the left hip and right knee disabilities were less likely as not related to any treatment or symptoms noted in active service are based on the inaccurate factual premises that there was no medical evidence of either condition since separation from service other than what was noted at prior VA examinations. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (opinions based on inaccurate factual premises have limited, if any, probative value). With regard to the right knee, the Board notes that the April 2017 medical opinion was based on findings of no evidence of right knee treatment since service and no evidence of chronic right knee pain in active service. The examiner determined there was no chronic right knee pain in active service based on a December 1993 STR assessing a right knee strain and a follow up record in April 1994 reporting resolving right knee tendonitis. The Board finds the above unclear as to whether the examiner considered the Veteran's in-service physical therapy for the right knee that included a temporary physical profile. Moreover, the examiner did not address an October 2009 VA treatment record that assessed mild osteoarthritis of both knees secondary to old injuries. With regard to the left hip, private medical records indicate the Veteran was seen as early as March 2001 for hip pain, with physical therapy for hip and back pain in 2003 and a possible diagnosis of hip arthralgia, and a notation of left hip pain in connection with October 2009 VA treatment. As the April 2017 examiner did not address all relevant evidence of record, additional medical opinions are required. See Stegall, 11 Vet. App. at 271. Updated VA treatment records should also be associated with the claims file. 38 U.S.C. § 5103A(c). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the file updated VA treatment records dating since February 2017. 2. After completing any records development, send the claims file to an examiner to provide a medical opinion regarding the nature and etiology of the Veteran's left hip and right knee disorders. If a new examination is deemed necessary to respond to the request, one should be scheduled. For each current right knee and left hip disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder began in service, was caused by service, or is otherwise related to service. In making these determinations the examiner must specifically consider and address the STRs noting left hip and right knee injuries with subsequent physical therapy, the October 2009 VA treatment record for right knee pain which assessed mild osteoarthritis of both knees secondary to old injuries, private medical records evidencing physical therapy for hip pain from 2001 to 2003, and Veteran's statements regarding the onset of his symptoms during active service. The rationale for all opinions expressed must also be provided. 3. After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs