Citation Nr: 18145733 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 15-45 744 DATE: October 30, 2018 ORDER Entitlement to service connection for left shoulder rotator cuff tear and glenohumeral arthrosis (claimed as left shoulder condition) is granted. REMANDED Entitlement to service connection for anemia is remanded. Entitlement to an increased evaluation for lumbar strain with mild degenerative disc disease, currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for osteoarthritis, right knee, currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for gastroesophageal reflux disease (claimed as GERD and hernia), currently evaluated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for anxiety disorder, not otherwise specified currently evaluated as 50 percent disabling, is remanded. Entitlement to a temporary 100 percent evaluation due to convalescence for left shoulder rotator cuff tear and glenohumeral arthrosis is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDING OF FACT The Veteran’s left shoulder rotator cuff tear and glenohumeral arthrosis (claimed as left shoulder condition) is related to an in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for left shoulder rotator cuff tear and glenohumeral arthrosis (claimed as left shoulder condition) have been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to September 1980 and March 1982 to December 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision which granted a 30 percent evaluation for anxiety disorder; a December 2013 rating decision which denied an increased ratings for right knee osteoarthritis and lumbar strain, denied service connection for left shoulder rotator cuff tear and glenohumeral arthrosis and anemia, and denied entitlement to a temporary 100 percent evaluation for convalescence; and a January 2014 rating decision which denied an increased evaluation for GERD and denied entitlement to a total disability rating due to individual unemployability (TDIU). The Veteran changed representatives during the course of the appeal. See VA Form 21-22 dated in March 2017 appointing The American Legion. The Veteran’s representative will have the opportunity to provide additional arguments on behalf of the Veteran while the remanded issues are in remand status. The Veteran did not request a Board hearing. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for left shoulder rotator cuff tear and glenohumeral arthrosis (claimed as left shoulder condition) The Veteran asserts that his left shoulder disability is due to his jumping from a Humvee during an attack during military service. The Board concludes that the Veteran has a current diagnosis of left shoulder rotator cuff tear and glenohumeral arthrosis that is related to his falling out of a truck in 2003. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). April 2013 private treatment records show the Veteran has a current diagnosis of left shoulder rotator cuff tear and glenohumeral arthrosis, and the December 2013 VA examiner opined that the Veteran’s left shoulder rotator cuff tear and glenohumeral arthrosis is more likely as not related to an in-service injury, event, or disease, as competently and credibly reported by the Veteran. The rationale was that a rotator cuff tear may result from injury to the shoulder, such as fracture or dislocation and the traumatic nature of the injury in 2003 and the rapid onset of symptoms which did not resolve was more likely the cause of the Veteran’s left shoulder disability. Thus, service connection for left shoulder rotator cuff tear and glenohumeral arthrosis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for anemia is remanded. The Veteran indicated in a March 2009 authorization for release of information that he received treatment at the Jacksonville Naval Hospital and at Jacksonville Naval Air Station. A remand is required to allow VA to request these potentially relevant records. 2. Entitlement to an increased evaluation for lumbar strain with mild degenerative disc disease, currently evaluated as 10 percent disabling, is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s lumbar strain, in light of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Veteran must undergo another VA examination. 3. Entitlement to an increased evaluation for osteoarthritis, right knee, currently evaluated as 10 percent disabling, is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s right knee osteoarthritis, in light of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Veteran must undergo another VA examination. 4. Entitlement to an increased evaluation for gastroesophageal reflux disease (claimed as GERD and hernia), currently evaluated as 10 percent disabling, is remanded. The Veteran was last examined by VA for GERD in December 2013. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his GERD disability. 5. Entitlement to an increased evaluation for anxiety disorder, not otherwise specified currently evaluated as 50 percent disabling, is remanded. In a November 2012 statement, the Veteran asserted that his anxiety disorder has increased in severity since the Veteran was last examined by VA in March 2012. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of anxiety disorder. 6. Entitlement to a temporary 100 percent evaluation due to convalescence for left shoulder rotator cuff tear and glenohumeral arthrosis is remanded. The Veteran indicated in a March 2009 authorization for release of information that he received treatment at the Jacksonville Naval Hospital and at Jacksonville Naval Air Station. A remand is required to allow VA to request these potentially relevant records. Also, in light of the Board’s grant of service connection for a left shoulder disability, the RO will decide whether the Veteran is entitled to a temporary total rating in the first instance. 7. Entitlement to total disability based on individual unemployability is remanded. Finally, because a decision on the remanded issues of lumbar strain, right knee osteoarthritis, GERD, and anxiety disorder, and remanded issue of service connection for anemia could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain records of any treatment at Jacksonville Naval Hospital at the Jacksonville Naval Air Station. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected lumbar spine disability. The Veteran’s claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the back cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 3. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected right knee disability. The Veteran’s claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH knees on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the knees cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected anxiety disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected anxiety disorder alone. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel