Citation Nr: 1818663 Decision Date: 03/29/18 Archive Date: 04/05/18 DOCKET NO. 13-10 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for right shoulder degenerative joint disease with atrophy. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.P. Armstrong INTRODUCTION The Veteran served on active duty from January 5, 1956 to February 21, 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified before the undersigned in an August 2016 hearing. A hearing transcript is of record. The Board notes that in August 2016, the Veteran submitted a VA Form 21-22a Appointment of Individual as Claimant's Representative naming Allen Hassan. In correspondence dated November 2016 and November 2017, the Board informed the Veteran that Mr. Hassan was not an attorney accredited by VA and of the various alternative options available. In December 2017, the Veteran simultaneously submitted a VA Form 21-22 Appointment of Veterans Service Organization blank except for the Veteran's name and a VA Form 21-22a, which appeared to appoint Mr. Hassan as a one-time representative under 38 C.F.R. § 14.630 but did not contain the requisite signature in block 7D of the form. The Board again in January 2018 wrote the Veteran attempting to clarify his desired representation. To date, the Veteran has not responded to the Board's request, and the Board is unable recognize Mr. Hassan as the Veteran's representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran was noted as having an abnormal right upper extremity when examined, accepted, and enrolled for service. 2. The evidence shows that the Veteran's right shoulder was initially assessed with partial atrophy but good strength and later deemed to have weakness and atrophy of the whole shoulder girdle and arm. 3. The evidence of record is not clear and mistakable that this worsening was due to the natural progression of the disease as opposed to a reported in-service injury. CONCLUSION OF LAW The criteria for an award of service connection for right shoulder degenerative joint disease with atrophy have been met. 38 U.S.C. §§ 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his pre-existing right shoulder disability was permanently worsened by an in-service injury where he was hit by the butt of a rifle. Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C § 1131; 38 C.F.R. § 3.303(a). When a defect, infirmity, or disorder is noted on the enlistment examination, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation; the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See id. at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to report symptoms and experiences observable by his senses; however, he is not competent to determine the cause of a shoulder injury or what constitutes clinically significant aggravation as this requires specialized medical training and testing to understand the complexities of orthopedic medicine. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The evidence shows that the Veteran had a pre-existing disability noted at entrance to service. During the Veteran's November 1955 enlistment examination, the examiner marked abnormal upper extremities and indicated muscular imbalance of the upper extremities; right upper extremity with some atrophy but good strength; and partial atrophy of the right shoulder girdle, right arm, and pectorialis muscle grown since birth. His physical profile of the upper extremities was "3." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects: the overall physical and psychiatric condition of the veteran .on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). However, the condition was not considered disabling as to prevent enlistment, and the Veteran began active service on January 5. Then, on January 27, 1956, he reported for medical treatment. Medical evaluators in service and after have opined that the Veteran likely had a childhood ailment, like polio, which caused his pre-existing shoulder disability. The Veteran does not dispute that he had a pre-existing injury. See March 2013 Form 9. Instead, he asserts that it was worsened by service. Regarding worsening, the Veteran reported that he was able to play sports in high school and passed the physical fitness requirements for induction, including push-ups, and did not develop limitations from the right shoulder until he was in boot camp. See Form 9, Board hearing, July 2011 VA examination. He has consistently reported that his right shoulder was injured when a fellow serviceman struck him with the butt of a rifle. While service treatment records do not discuss this particular injury, the evidence does show that the Veteran served for a few weeks before something prompted him to report for treatment on January 27, 1956 with complaints of right shoulder pain. At that time, providers noted that his shoulder appeared to be dislocated and he had atrophy of the whole shoulder girdle and arm with weakness to the musculature. The diagnosis was atrophy muscular due to poliomyelitis as a baby. The Veteran was found unable to perform the duties of a soldier and discharged. The occurrence of the January 27 treatment for pain, approximately three weeks after enlistment, lends credibility to the Veteran's report of fitness and injury. Current VA treatment records and examinations show the Veteran has advanced degenerative joint disease with atrophy in his right shoulder. VA provided two examinations with medical opinions in July 2011 and January 2013. While both examiners concluded that the Veteran's right shoulder disability was due to his childhood ailment and not service, neither examiner provided sufficient explanation of why there was clear and unmistakable evidence against aggravation by service. Thus, neither opinion is sufficient for adjudication. The Board then sought an expert medical opinion. In the April 2017 opinion, the physician summarized the Veteran's medical history: he was noted to have shoulder girdle atrophy/right upper extremity atrophy during his entrance examination but clinical motor power testing revealed good strength and subsequently it was noted that the Veteran could not hold the gun properly for shooting. The physician explained that the assumption here is that vigorous boot-camp training altered the Veteran's condition beyond the natural progression; however, there is no evidence in medical literature to suggest that forceful use of muscles in cases with polio without injury results in permanent alteration in the course of the disease. The Board finds the record fails to establish by clear and unmistakable evidence that the Veteran's right shoulder disability was not worsened by his service. As discussed above, the lay reports and service treatment records show an increase in atrophy and disability in the right shoulder after entrance to service. The April 2017 opinion concludes that forceful use of muscles would not alter the natural progression of the disease. Nevertheless, the physician suggests that an injury could cause permanent alteration, and the physician's opinion is incomplete because he did not consider the Veteran's report of the in-service rifle injury. Instead, the physician wrote "it may be noted that nothing untoward happened during this time that would have altered the course of his condition beyond the natural progression." The Veteran has consistently reported this right shoulder injury, and the Board finds his reports credible. The Veteran's reports of injury along with the information provided by the April 2017 expert weigh such that the government has failed to meet its burden of showing that the Veteran's current right shoulder disability is due to the natural progression of his childhood disease. As such, the presumption of aggravation remains applicable and service connection for worsening of the right shoulder disability is warranted. See 38 C.F.R. § 3.304, 3.306. ORDER Service connection for permanent aggravation of the pre-existing right shoulder disability by active duty service is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs