Citation Nr: 19190816 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 17-42 423 DATE: December 3, 2019 ORDER Entitlement to service connection for left rotator cuff tendonitis and left glenohumeral joint osteoarthritis, as secondary to service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure, is granted. REMANDED Entitlement to an increased disability evaluation for right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure, currently rated as 20 percent disabling, is remanded. Entitlement to a temporary total disability evaluation for convalescence for surgical treatment of left rotator cuff tendonitis and left glenohumeral joint osteoarthritis is remanded. FINDING OF FACT The Veteran’s left rotator cuff tendonitis and left glenohumeral joint osteoarthritis is proximately caused by his service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure. CONCLUSION OF LAW The criteria to establish entitlement to service connection for left rotator cuff tendonitis and left glenohumeral joint osteoarthritis as secondary to service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 4.97, Diagnostic Code 6602 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1989 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board or BVA) on appeal from March 2015 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). In this decision, the Board is granting the claim being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran 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—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. Entitlement to service connection for left rotator cuff tendonitis and left glenohumeral joint osteoarthritis, as secondary to service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure The Board notes that the Veteran does not allege, and the evidence does not demonstrate, that the Veteran’s left shoulder disorder was incurred or aggravated during his period of active duty. Instead, the Veteran asserts that his left shoulder disability was caused by his service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure. Thus, the Board’s discussion focuses only on secondary service connection. Factual background shows that the Veteran was not treated or diagnosed with a left shoulder disability during his active service. However, private and VA treatment records reflect treatment for left shoulder complaints beginning in 2014; the Veteran reported that his left shoulder pain began after he started exercising and while working, as he relied more on his left shoulder to compensate for his service-connected right shoulder disability. The Veteran was initially provided with a VA examination in connection with his claim in March 2015. At that time, the Veteran reported onset of left shoulder pain approximately 10 months earlier; he did not recall a specific injury. The VA examiner opined that the Veteran’s left shoulder disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected right shoulder disability. The VA examiner noted that the Veteran was treated for a right shoulder exacerbation after doing mixed martial arts in June 2014 and treated in December 2014 for left shoulder pain; at that time, he reported onset of pain 3 – 4 months earlier. The VA examiner also noted that the Veteran had chronic right shoulder pain for many years and worked as a plumber with “no issues with the left shoulder due to compensatory mechanics prior to him resuming mixed martial arts and working out.” The VA examiner concluded that, because the Veteran’s a rotator cuff injury in the left shoulder had “timing consistent with when he was doing mixed martial arts,” he could not secondarily link the Veteran’s left shoulder disability with the Veteran’s service-connected right shoulder disability. At a November 2015 VA examination, the Veteran related that he believed that his left shoulder disorder was caused by his service-connected right shoulder disability because he has compensated for the right shoulder, as its use is limited by pain. He reported that the left shoulder became symptomatic after trying to break a pipe with a hammer; he indicated that his (now service-connected) left elbow became painful at the same time. The Veteran indicated that he limited his activity because of right shoulder pain, and then tried to get in shape by working out, and his left shoulder pain worsened such that he required surgical decompression. Following an examination, the VA examiner found that the Veteran’s left shoulder disability is not at least as likely as not secondary to the service-connected right shoulder disability as the Veteran reported that his left shoulder pain began with breaking a pipe with a hammer; the VA examiner found that “gym workouts are the next scenario with pain,” as his history of labor is consistent with “no compensation but activity related causes.” A November 2016 medical opinion indicated that the VA examiner agreed with the November 2015 VA examiner about secondary service connection. Nevertheless, the VA examiner found permanent aggravation a baseline of the Veteran’s left shoulder beyond natural progression; the VA examiner opined that it is at least as likely as not that the Veteran’s left shoulder disability is aggravated permanently beyond natural progression. The VA examiner noted that the Veteran has to use his left arm twice as much as normal due to limited function of the right shoulder, which is causing aggravation of the left shoulder beyond natural progression. The VA examiner opined that the Veteran’s baseline manifestations of the left shoulder condition prior to aggravation is in a mild-to-moderate category, but that the aggravation elevates his symptoms to a moderate category. A May 2017 VA opinion found that it is less likely as not that the Veteran’s left shoulder disability is permanently aggravated beyond natural progression by the service-connected right shoulder dislocation and posttraumatic arthritis status-post Bankhart procedure. The VA examiner found that there is no consistent medical history to attribute aggravation of the left shoulder disability to the service-connected right shoulder disability. The VA examiner indicated that the November 2015 finding that the Veteran compensated for his right shoulder disability by using his left arm twice as much as normal was inconsistent with the Veteran’s report that both shoulders are “messed up” and that the left shoulder got to a point wherein it was worse than the right shoulder. The VA examiner stated that the Veteran’s report suggests that depending on whichever shoulder is most symptomatic, the contralateral shoulder/arm is used more, and that this has varied over time, and thus, there was a net negative effect, such that chronic aggravation beyond natural progression cannot be posited based upon the findings of a single examination. The Board finds that the evidence of record demonstrates service connection for left rotator cuff tendonitis and left glenohumeral joint osteoarthritis, as secondary to service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure, is warranted. The Board acknowledges that the VA examiners found that it was less likely than not that the Veteran’s left shoulder disability was caused or aggravated by his service-connected right shoulder disability. However, the Board notes that none of the VA examiners provided a sufficient rationale, and that all of the opinions lack probative value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). To this point, the May 2015 and November 2015 VA examiners relied on the Veteran’s report of left shoulder pain after working out to state that there was no causation due to an intercurrent injury, despite a timeline that contradicts their findings. The Board observes that the Veteran reported a right shoulder exacerbation due to mixed martial arts in June 2014, and onset of left shoulder pain in approximately September 2014, with no report of injury at that time; there is nothing in the record to suggest that the Veteran’s mixed martial arts continued after June 2014. Furthermore, the May 2015 and November 2015 VA examiners reliance on the Veteran’s performing mixed martial arts ignores the Veteran’s report that he depends on his left shoulder to compensate for chronic right shoulder pain; the Board points out that the Veteran relies on his left arm so much that he is service-connected for his left elbow as secondary to his service-connected right shoulder disability. These VA examiners also ignored the Veteran’s report of left shoulder injury in the same incident wherein he injured his service-connected left elbow. In this regard, the November 2015 VA examiner’s rationale is inconsistent with his opinion that there was no proximate causation; the VA examiner attributes the Veteran’s left shoulder disability to activities, not compensation for chronic right shoulder pain, despite the fact that the Veteran compensates for chronic right shoulder pain during those activities. In short, the evidence demonstrates that the Veteran’s left shoulder disability began because he relied on his left shoulder when his right shoulder was too painful to utilize. As to the opinion by the November 2016 VA examiner that the Veteran switches shoulder usage based on which shoulder is more symptomatic and that there is a “net negative effect,” the Board finds this argument without merit as it does not address causation and is irrelevant to the question of aggravation, because it ignores the Veteran’s report of onset of left shoulder symptomatology; the Veteran reported that he did not begin switching shoulders based on pain until after his right shoulder pain worsened to the point that he needed to compensate by using his left shoulder. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s left rotator cuff tendonitis and left glenohumeral joint osteoarthritis, is causally related to the Veteran’s service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). With resolution of any reasonable doubt in the Veteran’s favor, entitlement to service connection for left rotator cuff tendonitis and left glenohumeral joint osteoarthritis, as secondary to service-connected right shoulder dislocation and posttraumatic arthritis, status-post Bankhart procedure, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for right shoulder dislocation and post traumatic arthritis, status-post Bankhart procedure, currently rated as 20 percent disabling The Veteran asserts that the symptoms of his service-connected right shoulder dislocation and post traumatic arthritis, status-post Bankhart procedure are more severe than presently evaluated. The Board observes that Veteran was most recently afforded VA examinations in connection with this claim in May 2018. However, the Veteran had recently undergone surgery and was not cleared for range of motion testing. As such, the Veteran must be provided with a new examination which consider the current severity of his service-connected disability on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In this regard, the Board points out that the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the CAVC’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In light of Correia, the Veteran must be provided a VA examination which provides range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the Veteran’s service-connected right shoulder dislocation and post traumatic arthritis, status-post Bankhart procedure. Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). In this regard, the Board notes that the most recent VA treatment records associated with the Veteran’s claims file are dated February 2013; however, review of the Veteran’s claims file indicates that the Veteran may be receiving ongoing treatment for his service-connected disability on appeal. As such, all available VA treatment records relevant to the claim remaining on appeal should be associated with the Veteran’s claims file. 2. Entitlement to a temporary total disability evaluation for convalescence for surgical treatment of a left shoulder disability The Veteran seeks entitlement to a temporary total evaluation for convalescence due to treatment for his now service-connected rotator cuff tendonitis and left glenohumeral joint osteoarthritis. The record reflects that the Veteran underwent surgery for his left shoulder in May 2015, and that the Veteran was seen for follow-up treatment in the months following surgery. However, the record does not reflect the duration of the Veteran’s period of convalescence, if any. In order to attain the temporary total evaluation, the Veteran must demonstrate that his service connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, the application of a body cast, a necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or, (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Without additional treatment records from the Veteran’s physicians, a determination as to entitlement cannot be made. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed disabilities on appeal, particularly related to his 2015 surgery on the left shoulder. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA shoulder examination to ascertain the current severity and manifestations of the Veteran’s service-connected right shoulder dislocation and post traumatic arthritis, status-post Bankhart procedure. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the After completing all indicated development, the RO should readjudicate the Veteran’s claim for an increased disability rating for service-connected glaucoma. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response, on his occupational functioning and daily activities. In particular, the VA examination must include range of motion testing for the right and left shoulders in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 3. After completing all indicated development, the RO should readjudicate the Veteran’s claim for an increased disability rating for service-connected right shoulder dislocation and post traumatic arthritis, status-post Bankhart procedure, as well as the claim for a temporary total evaluation for convalescence following his May 2015 left shoulder surgery. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Brokowsky, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.