Citation Nr: 18153493 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-40 046 DATE: November 28, 2018 ORDER Service connection for right shoulder osteoarthritis is granted. Service connection for urinary incontinence, secondary to service-connected nephrolithiasis, is denied. FINDINGS OF FACT 1. The Veteran sustained a right shoulder injury during combat in Iraq. 2. The Veteran had chronic symptoms of pain and arthritis in the right shoulder during service. 3. The Veteran has had continuous pain and arthritis in the right shoulder since separation from service. 4. The Veteran currently has urinary incontinence. 5. The Veteran’s urinary incontinence was neither proximately caused nor worsened in severity beyond normal progression by the service-connected nephrolithiasis. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for right shoulder osteoarthritis have been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for urinary incontinence, secondary to the service-connected nephrolithiasis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from September 1999 to September 2004. This appeal arises from an April 2015 rating decision, which denied service connection for right shoulder osteoarthritis and urinary incontinence. Duties to Notify and Assist 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 duty to assist argument). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. 5102, 5103, 5103A. Service Connection for Right Shoulder Osteoarthritis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The provisions of 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). The Veteran is currently diagnosed with right shoulder osteoarthritis. Arthritis is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, 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, 1137; 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. 38 C.F.R. §§ 3.307. The Veteran contends his right shoulder osteoarthritis disability was caused by a 2003 combat injury to his shoulder. Specifically, the Veteran asserted injuring his shoulder during an ambush in Iraq. During the ambush, the Veteran was outside the vehicle firing a gun at the enemy with his right hand on the inside handle of the vehicle. When the driver of the vehicle suddenly drove away, the Veteran’s shoulder was dislocated. See June 2016 Occupational Therapy Note. The Veteran reports that after this injury he experienced chronic shoulder pain in service and continuous shoulder pain since service that is now diagnosed as osteoarthritis. After a review of all the lay and medical evidence of record, the Board finds the evidence is at least in equipoise on the question of whether the Veteran sustained a right shoulder injury during combat and had chronic right shoulder pain attributed to osteoarthritis during service and continuous symptoms since service. The evidence is at least in equipoise on the question of whether the Veteran engaged in combat with the enemy during service. Military personnel records show the Veteran was awarded a Global War on Terrorism Expeditionary Medal, National Defense Service Medal, Navy Unit Commendation, Sea Service Deployment Ribbon, and Joint Service Achievement Medal. See DD Form214. The Veteran was recognized for his outstanding service in the demanding wartime environment of Iraq. See August 2003 NSA Processing Form. The report of a shoulder injury is consistent with the circumstances, conditions, and hardships of the Veteran’s service, notwithstanding the lack of official record of such incurrence. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). For this reason, the in-service injury presumption afforded to combat veterans under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) is applicable in this case to demonstrate that a shoulder injury incurred during service. The evidence is at least in equipoise on the question of whether the Veteran had chronic right shoulder pain during service. While service treatment records do not show a diagnosis or treatment pertaining to the right shoulder, the Veteran reported shoulder pain in his March 2004 Report of Medical History. Right shoulder pain was not documented upon entry to service. However, right shoulder pain was reported after the 2003 deployment to Iraq. Moreover, during an April 2015 C&P Exam, the Veteran attested that he began experiencing chronic and constant pain in the right shoulder after the combat injury in Iraq. These chronic symptoms of pain were later attributed to a diagnosis of right shoulder arthritis. See May 2016 VA Orthopedic Examination. The evidence is at least in equipoise on the question of whether the Veteran had continuous right shoulder symptoms since service separation. The current chronic symptoms of shoulder pain attributed to the diagnosis of right shoulder osteoarthritis are the same symptoms of chronic right shoulder pain and arthritis that were manifested during service. The Veteran has experienced ongoing right shoulder pain since separation from service in 2004. See May 2016 VA Orthopedic Examination. The Veteran has described this pain as “constant.” See April 2015 C&P Exam. Although the Veteran dislocated the shoulder again after service in 2009 and 2010, he experienced continuous pain in his shoulder prior to these dislocations because of the 2003 in-service combat injury. See 2004 Report of Medical History. The Board finds the Veteran’s history of symptoms to be consistent and credible when describing pain in relation to the diagnosed arthritis. In consideration thereof, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s current and continuously painful right shoulder osteoarthritis is a progression of the same condition diagnosed during service. Therefore, the “chronic symptoms in service” and “continuous symptoms since service” criteria for presumptive service connection under 38 C.F.R. § 3.303(b) for right shoulder osteoarthritis have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board is granting presumptive service connection under 38 C.F.R. § 3.303(b), all other potential theories for entitlement to service connection are rendered moot and will not be discussed. See 38 U.S.C. § 7104. Service Connection for Urinary Incontinence The Veteran seeks service connection for urinary incontinence, secondary to the Veteran’s service-connected nephrolithiasis. Service connection may be granted on a secondary basis for a disability which is “proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Initially, the Board finds the Veteran currently has urinary incontinence. The evidence has shown diagnoses of urinary incontinence throughout his medical history. See, e.g., 2017 C&P Exam; 2015 C&P Exam. Next, the Board finds the Veteran’s urinary incontinence was not proximately caused by the service-connected nephrolithiasis. In an April 24, 2016 statement, the Veteran contended he never had an issue “holding [his] urine” until he began experiencing kidney stones; however, in June 2016, the VA Examiner opined that “the patient’s overactive bladder is less likely than not related to procedures done for the patient’s nephrolithiasis.” The Veteran contends his private medical doctor opined that the urinary incontinence was caused by the service-connected nephrolithiasis. See 2016 VA Form 9. To the contrary, the private medical doctor never made such determination, but admitted that he did not know what caused the Veteran’s urinary incontinence. See April 2016 VA Medical Record. Finally, the weight of the evidence demonstrates that urinary incontinence was not aggravated by the service-connected nephrolithiasis. In an April 24, 2016 statement, the Veteran contended that the urinary frequency “was the result of all this trauma that happened while in service and aggravated during service.” Despite this statement, at a 2016 VA examination, the VA examiner opined that the lithotripsy procedure used to extract the Veteran’s kidney stones had no bearing on the increased urinary frequency. During the same examination, the VA Examiner opined that the Veteran’s urinary frequency was a consequence of muscle dysfunction, not kidney stones. At a 2015 VA examination, the VA examiner opined that the urinary incontinence could also be attributed to the Veteran’s 2002 renal failure. Consequently, service connection for urinary incontinence, secondary to service-connected nephrolithiasis, must be denied. 38 C.F.R. § 3.310. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dye, Associate Counsel