Citation Nr: 1807481	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-12 272	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a left shoulder disability.  

2.  Entitlement to service connection for a left shoulder disability, including as secondary to service connected right shoulder disability. 

3.  Entitlement to a rating in excess of 30 percent for a service connected right shoulder disability.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

T. Fales, Associate Counsel
INTRODUCTION

The Veteran served on active duty from September 1974 to September 1977.  He served honorably in the United States Army.  The Board thanks the Veteran for his service to our country. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which denied a claim for increase for the right shoulder and reopened and denied a claim for service connection for a left shoulder disability.

Pursuant to 38 U.S.C. § 5108 (2012) and 38 C.F.R. § 3.156 (2017), and in light of the "low threshold" espoused in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Board finds that the competent medical and lay evidence received since the last final denial in July 2003 constitute new and material evidence sufficient to reopen the Veteran's claim for service connection for a left shoulder disability.  At the time of the July 2003 denial, there was no evidence of a current left shoulder disability.  Evidence added to the record since 2003, including a September 2011 VA examination report diagnosing left shoulder arthritis, reflects that the Veteran now has a current left shoulder disability.

The issue of entitlement to a rating in excess of 30 percent for a service connected right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A July 2003 rating decision denied the Veteran's claim of service connection for a left shoulder disability; he did not appeal that denial or submit new and material evidence within one year of the notification of the decision, and the July 2003 rating decision became final. 

2.  New and material evidence has been received since the last final denial in July 2003 with regard to entitlement to service connection for a left shoulder disability.

3.  The Veteran's left shoulder disability is not associated with his active duty service; left shoulder arthritis was not manifested within a year of service; and the Veteran's left shoulder disability was not caused or aggravated by a service connected disability.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen a claim for service connection for a left shoulder disability.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.302 (2017).

2.  The criteria for entitlement to service connection for a left shoulder disability, including as secondary to service connected right shoulder disability, have not been met.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Criteria

Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service connected disease or injury.  Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service connected disability; and (3) that the current disability was either (a) caused, or (b) aggravated by the service connected disability.  See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Direct 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 the active military service or, if pre-existing such service, was aggravated thereby.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

For certain "chronic diseases," like arthritis, presumptive service connection is available.  See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  See 38 C.F.R. § 3.303(b).  For the showing of a 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.  See 38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  See id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the chronic disease became manifest to a degree of 10 percent within 1 year from date of termination of 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.  See 38 C.F.R. § 3.307.  The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

For the purpose of evaluating lay evidence, to include a veteran's statements about his health conditions and the circumstances of his service, competent evidence is "limited to that which the witness has actually observed, and is within the realm of his personal knowledge."  Layno v. Brown, 6 Vet. App. 465, 469-470 (1994).  For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is "not competent to opine as to medical etiology or render medical opinions."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Analysis

In May 2011, the Veteran filed a claim for service connection for a left shoulder disability as secondary to his already service connected right shoulder disability.  However, during the associated VA examination in September 2011, he clearly stated to the examiner that his "left shoulder is not secondary to the right shoulder" because "he hurt his right shoulder in the same event as his left shoulder was injured in service."  Properly taking into account the Veteran's lay statements, the examiner concluded that it is less likely than not that the Veteran's left shoulder is secondary to his right shoulder.  Indeed, since the Veteran's claim in May 2011, in which he checked the secondary service connection box on the VA claims form, the evidence of record shows that he has not contended secondary service connection in his correspondence with VA.  Rather, he has reiterated his previous contention, denied by the RO in July 2003, that his left shoulder should be service connected on a direct basis.  For example, in his April 2014 substantive appeal, he wrote: "My left shoulder was injured in the same motorcycle accident in service that injured my right shoulder. This may not have been addressed as obviously in my medical records as the right shoulder because the left was not my dominant arm."  Likewise, in his June 2012 notice of disagreement, he wrote: "Respectfully I disagree with your decision of no link between my left shoulder medical condition and military service . . . the motorcycle handle bar remaind in one piece not two separate pieces suddenly jerking/pulling on both shoulders simultaneously."  Both of these statements indicate a direct service connection claim.

The Board finds that the Veteran's affirmative denials and conspicuous omissions of secondary service connection after his claim was filed are more persuasive evidence than the single box he checked on the VA claims form as to what he is contending for the purposes of his left shoulder disability.  Regardless, the preponderance of the medical evidence is against the secondary service connection claim.  Accordingly, the Board concludes that a grant of benefits on the basis of secondary service connection is not warranted.  

Turning to the question of direct service connection, the Board finds that the Veteran has a current left shoulder disability.  During the pendency of this claim in September 2011, a VA examiner diagnosed him with arthritis confirmed by X-ray.  

As to in-service incurrence, that the Veteran was in a motorcycle accident during service is conceded because that accident was the basis for his already service connected right shoulder disability. 

However, regarding a nexus, or link, between the current disability and service, the preponderance of the competent medical evidence of record is against a finding that a nexus exists in this case.  Pursuant to the September 2011 VA examination, the examiner opined that it is less likely than not that the Veteran's left shoulder disability is associated with his service because a careful review of the claims file did not show any symptoms like those experienced by his right shoulder, to include pain of a continued duration following the accident.  Indeed, the Board finds that the Veteran's service treatment records are silent for any complaints or treatment of the left shoulder.  At the same time, they contain significant detail regarding the Veteran's right shoulder, to include a notation that he had a "bruise" on it "1 yr ago," he "[complained of] inability to throw ball as far as before," and "[patient] has been seen twice [and] told to wait."  The Board notes that although the Veteran has submitted private treatment records pertaining to his left shoulder, to include a letter from March 2017, those records, at best, address in-service incurrence of a left shoulder condition and not nexus.  Accordingly, the third element of direct service connection has not been met and the Veteran's claim is not warranted.  

Last, the Board notes that it has considered the applicability of alternative theories of entitlement, to include presumptive service connection and continuity of symptomatology.  However, as there is no evidence that the Veteran's arthritis was noted during service; as the evidence, to include a November 2002 VA examination report with X-rays "find[ing] the left shoulder to be normal" does not support a finding of continuity of symptomatology; and as there is no evidence that arthritis was manifested to a compensable degree during the year following service, the Veteran's claim is not warranted.


ORDER

New and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability.

Service connection for a left shoulder disability, including as secondary to service connected right shoulder disability, is denied.


REMAND

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires certain range of motion testing be conducted for claims involving joints, such as the shoulder.  The final sentence of § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  The Court held that an adequate VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.  VA examiners should also convey any additional or increased symptoms and functional loss experienced during flare-ups, as well as information pertaining to frequency, duration, characteristics, and severity.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

Here, the Veteran underwent a VA examination for his right shoulder in September 2011.  However, a review of the examination report shows that it does not comply with the above requirements and the competent medical and lay evidence of record indicates that the Veteran's right shoulder disability has worsened during the intervening years, to include frequent dislocations and difficulty reaching up to comb his hair.  Therefore, a remand for an updated examination is warranted.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that once VA undertakes to provide an examination when developing a service connection claim it must provide an adequate one).

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims file all outstanding VA and non-VA medical records for the Veteran's service connected right shoulder disabilities.

2.  After the record is determined to be complete, schedule the Veteran for a VA examination to determine the current extent of his service connected right shoulder disabilities.  In particular, the examiner should:

a.  Conduct range of motion testing, specifically noting the ranges of motion in degrees on active and passive motion, weight-bearing and nonweight-bearing, including with comparison to the opposite undamaged joint.  If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

b.  Consider the Veteran's reports of flare-ups and portray any related functional impairment in terms of additional range of motion loss.  The frequency, duration, characteristics, and severity should also be noted.  If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

3.  Following completion of the above, readjudicate the issues on appeal.  If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board, as appropriate, for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs