Citation Nr: 18155622 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 14-15 525 DATE: December 4, 2018 ORDER Service connection for residuals of left rotator cuff repair is granted. FINDING OF FACT A left rotator cuff injury was incurred during a period of INACDUTRA or was aggravated during a period of ACDUTRA. CONCLUSION OF LAW The criteria for service connection for residuals of left rotator cuff repair have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to July 1992, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) thereafter. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2017, the Veteran testified during a Board hearing in St. Petersburg, Florida, before the undersigned Veterans Law Judge. A transcript is included in the claims file. In January 2018, the Board remanded the Veteran’s appeal with instruction to update relevant treatment records and to obtain additional information about the specifics of the Veteran’s Reserve service. The appropriate records and information have since been obtained. The January 2018 remand further instructed that a statement of the case should be issued regarding the issues of service connection for a lower back disability and a right hip disability. Such a statement of the case was issued in September 2018. The Veteran did not complete a substantive appeal within 60 days, and the issues are thus no longer before the Board and will not be addressed further in this decision. The Board is therefore satisfied that the instructions in its January 2018 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for residuals of left rotator cuff repair The Veteran seeks service connection for residuals of left rotator cuff repair. 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; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of service connection, the abovementioned disease or injury must be incurred or aggravated in the active military, naval or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term “active military, naval or air service” is further defined as (1) active duty or a period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101(24). Service connection for disability arising from INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, not pertinent here). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). 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 claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Reserve service treatment records reflect that in February 2010 the Veteran reported left shoulder pain from pushups. Private treatment records reflect that in February 2010 the Veteran reported left shoulder pain with a possible injury from physical training. X-rays were normal. In March 2010 he reported that the pain began in October 2009 after he increased his exercise program. He reported that a cortisone injection had provided some improvement of his symptoms. He was diagnosed with subacromial exostosis with impingement syndrome and referred for an MRI to rule out a rotator cuff tear. A subsequent MRI showed a partial tear of the superior fibers of the subscapularis tendon, infraspinatus tendinosis, and irregularity of the posterior superior labrum without a definite tear. In April 2010 he underwent a subacromial decompression and debridement of a partial thickness tear of the rotator cuff and labrum. In an April 2010 statement, the Veteran reported that he injured his left shoulder in approximately October 2009. Specifically, he stated that he aggravated his left tendon and rotator cuff from continuance of physical training and taking part in the fall 2009 Navy Physical Readiness Test. He recounted his treatment since that time. He made a similar statement in July 2010. The Veteran underwent a VA examination in September 2010. He reported injuring his left shoulder during physical readiness training and undergoing surgery in April 2010. He was diagnosed with residuals of left rotator cuff repair surgery. The examiner opined that it was less likely than not related to active duty. This opinion was based on the rationale that available medical records were silent for a condition during active duty. In a September 2010 letter, the Veteran’s private treating physician explained that he was seen in October 2009 for shoulder pain resulting from an injury while participating in Physical Readiness Training during Reserve duty. He was treated with an injection and returned with continued reports of pain in November 2009. He received an x-ray in February 2010 and was referred to an orthopedist. In a January 2011 statement, the Veteran reported chronic pain in his left shoulder that was the result of an injury sustained during Reserve service. VA treatment records reflect that in May 2011 the Veteran reported aches in his left shoulder. He was faring okay without medication. He again reported that his left shoulder bothered him in November 2011, but reported that he rarely took Tylenol or Motrin for it. At his January 2012 RO hearing, the Veteran explained that he injured his shoulder in October 2009 during a Reserve weekend. He stated that he reported the pain to a medic, but was subsequently treated by his private physician. VA treatment records reflect that in July 2012 the Veteran again reported shoulder discomfort. He was diagnosed with arthralgia. He reported discomfort again in March 2013. In his July 2014 substantive appeal, the Veteran reported that his torn left rotator cuff repair resulted from his physical training activity during Reserve duty. He stated that he reported it to his physical training coordinator and checked into medical, then subsequently received treatment and radiology showing a torn rotator cuff from his civilian physician. He stated that this injury made him not medically qualified for service. VA treatment records reflect that in December 2014 the Veteran reported left shoulder pain. X-rays were unremarkable. He again reported left shoulder pain in April 2017. In an August 2017 letter, the Veteran’s private physician opined that his left rotator cuff tear was more likely than not related to job duties over the course of his military service. This opinion was based on the rationale that the history of the condition was consistent with his current diagnosis. VA treatment records reflect that in April 2018 the Veteran again reported left shoulder pain. Records obtained on remand indicate that between February 2009 and February 2010 the Veteran served 17 days of ACDUTRA and 68 days of INACDUTRA. Separate documentation indicates that the 17 days of ACDUTRA consisted of 4 days in December 2009 and 13 days in January 2010, with no periods of ACDUTRA having occurred between December 2008 and December 2009. No documentation provides further specificity regarding the INACDUTRA periods. VA has made multiple requests for line of duty determinations, but no responses have been received. The Board finds that the evidence is at least in equipoise as to whether the injury underlying the Veteran’s left rotator cuff tear was incurred during a period of INACDUTRA or was aggravated during a period of ACDUTRA. Specifically, with 68 days of INACDUTRA over the period of the year, it stands to reason that the Veteran served some of these days in October 2009. He has consistently stated that the injury began in service doing pushups, as far back as in medical records from February 2010 as well as statements in support of his claim as far back as April 2010. Given that personnel records and service treatment records do not reflect any treatment prior to February 2010, even if the Veteran did not injury his shoulder during an October 2009 period of INACDUTRA, the Board finds it unlikely that such an injury would not have been aggravated by the physical strain of his two intervening periods of ACDUTRA in December 2009 and January 2010. Furthermore, the August 2017 opinion of the Veteran’s private physician shows, if nothing else, that the Veteran’s reported timeline of his injuries are consistent with his diagnoses and objective findings. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the injury underlying the Veteran’s left rotator cuff tear was incurred during a period of INACDUTRA or was aggravated during a period of ACDUTRA. Service connection is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Counsel