Citation Nr: 18149755 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 12-32 637 DATE: November 13, 2018 ORDER The petition to reopen a claim of entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to a rating in excess of 10 percent for hydrarthrosis, right knee, status post meniscectomy is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A March 2006 rating decision last denied service connection for a left shoulder disability; evidence pertaining to the Veteran’s left shoulder disability since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 2. The Veteran has a left shoulder disability related to an injury incurred while on inactive duty for training. CONCLUSIONS OF LAW 1. The March 2006 rating decision which denied the Veteran’s claim for entitlement to service connection for a left shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.1103. 2. The evidence received since the last final March 2006 rating decision is new and material, and the claim for service connection for a left shoulder disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 101(24), 1101, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to March 1982 and from June 2004 to July 2005. He also has confirmed service in the United States Army National Guard during various periods of inactive duty training (INACDUTRA) and active duty for training (ACDUTRA). New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left shoulder disability. At the time of the last final denial of the Veteran’s claim for service connection for a left shoulder disability, in March 2006, evidence of record included service treatment records and VA examination reports. Evidence associated with the claims file since the previous March 2006 denial includes VA treatment records, private treatment records, private positive etiological opinions, and statements and testimony reflecting continued issues with his claimed disability. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for a left shoulder disability is reopened. Service Connection 2. Entitlement to service connection for a left shoulder disability. The Veteran contends he has a left shoulder disability due to an in-service lifting injury. An August 1992 Statement of Medical Examination and Duty Status found that the Veteran had a left shoulder sprain injury, incurred in the line of duty, during a period of inactive duty training. It was noted that the Veteran had injured his left shoulder while lifting some cable from a truck while on Army National Guard Duty. For the reasons set forth below, the Board finds that the evidence supports his claim. Under 38 U.S.C. § 101(24) “active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty.” ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the reserve components. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Annual two-week training is an example of ACDUTRA. Inactive duty training (INACDUTRA) is training duty, other than full time, performed by the reserve components. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, by active service, and from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C. §§ 101(24), 106, 1110 (2012). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007). The Board acknowledges that the Veteran presently has a current left shoulder disability. As for the second requirement for service connection, that of a disease or injury incurred or aggravated during service, the Board acknowledges that a review of the Veteran’s National Guard records reflects an August 1992 Line of Duty determination indicating that the Veteran had injured his left shoulder while lifting some cable from a truck while he was on inactive duty training. Service personnel records therefore confirm that the Veteran was performing INACDUTRA service on the date of his left shoulder injury. VA treatment records continue to reflect treatment for his left shoulder. The Veteran initially filed a service connection claim for his left shoulder shortly following separation from service in July 2005. The Veteran testified at his July 2018 BVA hearing that he continues to experience left shoulder problems. The determinative issue is whether his current left shoulder disability is related to his conceded left shoulder injury from August 1992 while on INACDUTRA in the Army National Guard. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (‘A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.’). In support of his claim the Veteran has submitted August 2009 and June 2013 positive etiological opinions. In an August 2009 letter, the Veteran’s treating physician noted that the Veteran was having persistent recurrent problems with pain and weakness in his left shoulder. He noted that this problem was related to a military injury in which he sustained an injury to his left shoulder. The private physician opined that the Veteran has residual damage to his left shoulder from a military injury years ago. He stated that the Veteran will require rotator cuff repair and decompression of his left shoulder. In a subsequent June 2013 letter, the same treating physician stated that the Veteran was having continuing problems with his left shoulder. He reflected that the Veteran had shown him documentation of his military injury in August 1992 while he was on active duty. He noted that the report reflected that the Veteran had injured himself while lifting heavy reels of cable and placing them on a trailer. The physician stated that the Veteran had significant ongoing problems with his left shoulder and needed continuing care. He opined, after reviewing both the Veteran’s military records and his own treatment records, that the Veteran’s ongoing left shoulder disorder was indeed a continuation of the service-connected injury he sustained in August 1992. The record additionally includes a negative August 2011 VA opinion. The Board has considered in detail the medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current left shoulder disability and service. The nature and extent of the problem related to service is not before the Board. As all elements of service connection have been satisfied, service connection for this disability is granted. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(d) (2018). REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Entitlement to a rating in excess of 10 percent for hydrarthrosis, right knee, status post meniscectomy is remanded. The Veteran was last afforded a VA examination of his right knee in September 2016. He testified at his July 2018 BVA Hearing that his disability had worsened since the last VA examination. The Board finds that he should be afforded a new examination in order to determine the current nature and severity of this service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to TDIU is remanded. The Veteran’s claim for entitlement to TDIU is inextricably intertwined with his remanded claim for an increased rating. Therefore, the Board will not issue a decision on this claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are ‘inextricably intertwined’ when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: Schedule the Veteran a VA examination to determine the nature and severity of his service-connected hydrarthrosis, right knee, status post meniscectomy. The Veteran’s claims file should be provided to the examiner. The examiner must obtain a detailed clinical history from the Veteran and must note all pertinent pathology found on examination in the report of the evaluation. Any testing deemed necessary should be performed. The examiner must provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s hydrarthrosis, right knee, status post meniscectomy under the rating criteria. The examiner must comment on the functional effects of the disability evaluated. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel