Citation Nr: 20004642 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-09 769 DATE: January 21, 2020 ORDER The claim of entitlement to service connection for a left shoulder condition, to include residuals of a left shoulder dislocation, is granted. REMANDED The claim of entitlement to a left ankle condition, to include achilles tendinitis, is remanded. The claim of entitlement to a right ankle condition, to include residuals of a sprain, is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s left shoulder condition is related to his active duty service. CONCLUSION OF LAW The criteria for the claim of entitlement to service connection for a left shoulder condition have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Marine Corps from August 1980 to August 2000. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. The claim of entitlement to service connection for a left shoulder condition, to include residuals of a left shoulder dislocation. The Veteran contends that his left shoulder condition is related to a shoulder dislocation he experienced during active duty. See Form 9. 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. To show chronicity there is a requirement of a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). In these types of cases the disease is presumed under the law to have had its onset during service even though there is no evidence of that disease during service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d), 3.309(a). Pursuant to 38 C.F.R. § § 3.309(a) if a disease is not shown to be chronic during service or the one-year presumptive period, then service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established by demonstrating: (1) that a condition is shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Nevertheless, when service connection cannot be granted on a presumptive basis, a veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039,1042 (Fed. Cir. 1994). VA shall consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; 38 C.F.R. § 3.303; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent lay evidence also means any evidence not requiring that the proponent have specialized education, training, or experience. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the preponderance of the evidence weighs against the claims of the Veteran, the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this matter, the Board notes at the outset that there is evidence that the Veteran has a left shoulder condition. Imaging studies have documented that the Veteran has degenerative or traumatic arthritis. According to the Veteran’s September 2017 VA examination, the Veteran’s diagnosed conditions included a glenohumeral joint dislocation of the left shoulder in 1990, and a diagnosis of rotator cuff tendinitis in December 2016, and glenohumeral osteoarthritis. The Veteran experiences pain and an abnormal range of motion, among other symptoms. As such, the Veteran has met the first element of service connection. As for the second element of service connection, the Veteran’s service treatment records (STRs) confirm the Veteran’s contention that he experienced an in-service injury to his left shoulder. The Veteran’s enlistment records reflect that the Veteran had no problems related to his left shoulder upon entry into active service. A treatment record dated July 1990 reflects that the Veteran sought treatment for a “possible shoulder dislocation,” which occurred during a tackle football game. According to the treatment note, the Veteran “had pain and heard a popping sound.” The Veteran reported that a friend then “popped [the] shoulder back in.” After some stretching, the Veteran reported his shoulder popped out again, and had to be popped in again. The medical treatment provider recommended that the Veteran use a sling and swathe for seven days, utilize pain medication and ice, have a physical therapy consult, and to return in a week for additional evaluation. The Veteran was also recommended for light duty for three weeks. Accordingly, the second element of an in-service injury is met. The remaining question is whether the Veteran’s left shoulder condition is related to his in-service injury. The Board finds that the evidence of record is at least in equipoise as to this element. In February 1995, the Veteran received a periodic physical examination during which he reported having a “painful or ‘trick’ shoulder,” and reported having “intermittent pain” in his left shoulder. The Veteran’s post-service treatment records show that in March 2016, the Veteran sought VA medical care for left shoulder pain that he reported having “for a long time.” In April 2016 the Veteran underwent magnetic resonance imaging (MRI) at a VA facility to assess a complaint of “chronic left shoulder pain.” Included in the MRI report was a finding that the Veteran had mild atrophy of the infraspinatus muscle, which was “likely related to an old tear at the myotendinous junction.” The MRI report also noted that the Veteran had an “old Hill-Sachs deformity with slight osseous remodeling of the anteroinferior glenoid, suggestive of an old Bankart injury.” The Board notes that Hill-Sachs and Bankart injuries are commonly associated with shoulder dislocations. See generally Sherman MD, Shoulder dislocation and reduction, UpToDate, https://www.uptodate.com (last updated June 19, 2019). In December 2016, the Veteran underwent additional diagnostic imaging of his left shoulder. A note included in the radiological imaging report indicated that the Veteran had experienced moderate intermittent shoulder pain “for 26 years,” which, the Board notes, would have placed the initial pain starting in 1990, the year of the Veteran’s left shoulder injury. In December 2016, the Veteran also received a full VA examination and etiology opinion regarding his claimed shoulder condition. The examiner’s initial etiology opinion was rejected by the RO due to the examiner providing an internally conflicting opinion. The VA examiner ultimately returned a negative nexus opinion in an addendum dated January 2017. In September 2017, the Veteran received another VA examination regarding shoulder and arm conditions. This examiner noted the Veteran’s left shoulder dislocation while in service and noted that the Veteran reported “other strains and minor injuries to his shoulders while serving in the [M]arines.” The examiner noted the Veteran experienced “significant pain with pushing, pulling and direct pressure being placed on either shoulder” and that he “avoids doing anything above shoulder level due to pain.” The examiner further noted that the Veteran was already service-connected for residuals of a dislocation of his right shoulder. The examiner did not, however, provide any nexus opinion whatsoever as to the left shoulder, and the Board cannot infer one here. In considering the medical opinion evidence of record, the Board notes that while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the Board finds the December 2016 and January 2017 negative medical nexus opinions to be entitled to reduced probative value. Significantly, the examiner did not appear to consider the Veteran’s lay statements of record regarding his ongoing symptoms. The examiner also failed to acknowledge or address the April 2016 VA diagnostic imaging related to the “old” shoulder injury. As for the lay evidence of record, however, the Board finds the Veteran’s lay statements to be consistent, competent, and credible evidence of the continuity of his symptoms, and thus to hold significant probative weight in support of his claim. A veteran is competent to testify regarding the onset and continuity of symptomatology. See Falzone v. Brown, 8 Vet. App. 398, 403, 405 (1995). Here, the Veteran reported intermittent left shoulder pain in 1995 while still in active service, then eventually sought medical treatment for his ongoing shoulder pain after service. Thus, while the record includes a negative nexus opinion, the Board finds that the Veteran’s statements regarding the onset and chronicity of his symptoms after his injury to be of greater probative value. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Resolving all reasonable doubt in his favor, the Board finds the Veteran had ongoing symptoms related to his left shoulder injury since service, and that his claim meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Accordingly, the Board finds that service connection for a left shoulder condition, to include residuals of a shoulder dislocation, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As explained above, the Board has determined that the VA examination of December 2016 and January 2017 opinion are entitled to significantly reduced probative weight, however, the Board does not need to reach the ultimate weight assignable to the examiner’s opinion because service connection may be granted on a presumptive basis based on a finding of continuous symptoms since service rather than on direct service connection. Because the Board is granting service connection on a presumptive basis, all other service connection theories are rendered moot. REASONS FOR REMAND 1. The claim of entitlement to a left ankle condition, to include achilles tendinitis, is remanded. 2. The claim of entitlement to a right ankle condition, to include residuals of a sprain, is remanded. The Veteran contends that his left ankle and right ankle conditions are related to his active duty service. Having reviewed the contentions and evidence of record, the Board notes that the Veteran has asserted claims of entitlement to service connection for “left ankle achilles tendon” and “right ankle sprain.” The Board finds that the issues on appeal are more accurately stated as reflected above. The United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, in consideration of the holdings in Brokowski and Clemons, the Board has recharacterized and broadened the Veteran’s claims as listed above. The Board cannot make a fully informed decision regarding the Veteran’s claims because the medical opinion evidence of record is inadequate. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that while the Veteran received a VA examination of each ankle in December 2016, the examination opinion included incorrect service dates for the Veteran and included so much contradictory information that the RO had to obtain an addendum opinion from the examiner to clarify. Unfortunately, the January 2017 addendum opinion continued to lack clarity and continued to include incorrect information regarding the Veteran’s claimed conditions. Further, as for the left ankle, the examiner concluded that “the Veteran likely experienced acute events during service that did not progress to a chronic, ongoing left ankle strain,” but failed to reconcile that conclusion with the Veteran’s complaint of pain in his achilles tendon for over five months during active service in 1990 and his diagnosis of left ankle tendinitis in February 1991. Additionally, because the Veteran’s last VA examination was in December 2016, the Board finds that an updated examination is necessary to assess the Veteran’s current ankle conditions and to provide more thorough nexus opinions with rationale regarding the Veteran’s distinct ankle conditions. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issue on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination with an appropriate clinician to assess the nature and etiology of his claimed left and right ankle conditions as have been broadened above. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. The examiner must take a full history from the Veteran regarding observable symptomatology since his in-service injuries. After a thorough review of the medical and lay evidence of record, and after performing all indicated tests and studies, the examiner is asked to opine as to the following: (a.) Identify any and all present diagnoses and/or disabilities related to the Veteran’s left and right ankles. (b.) For any diagnosed left ankle condition, is it at least as likely as not (50 percent probability or greater) that it was caused by, or is related to an in-service ankle injury or injuries? The examiner is asked to consider and discuss (at minimum) the following: (i) the Veteran’s service treatment records related to the left ankle achilles tendon “pump bump” injury and tendinitis described in STRs dated February 1991; (ii), the Veteran’s own lay statements regarding left ankle symptoms and pain management of his condition since active duty service. (c.) For any diagnosed right ankle condition, is it at least as likely as not (50 percent probability or greater) that it was caused by, or is related to an in-service ankle injury or injuries? The examiner is asked to consider and discuss (at minimum) the following: (i) the Veteran’s service treatment records related to the right ankle injuries dated: October 1984, October 1987; October 1992; (ii) the Veteran’s own lay statements regarding right ankle symptoms and pain management of his condition since active duty service. (Continued on the next page)   The examination report should specifically state that a review of the record was conducted. In formulating the above opinions, the examiner(s) must consider and discuss all lay statements and assertions provided by the Veteran. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and identify what additional evidence or information (if any) would allow for a more definitive opinion. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, Associate 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.