Citation Nr: 20021099 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-18 341 DATE: March 24, 2020 ORDER Entitlement to service connection for residuals of repair rotator cuff tear of right shoulder is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for lumbosacral and thoracic degenerative joint disease, degenerative disc disease, and spondylolisthesis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). FINDING OF FACT The Veteran had an initial in-service fall which caused a tear in her right shoulder, resulting in surgery for repair of rotator cuff tear in her right shoulder. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of repair rotator cuff tear of right shoulder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to May 1979, and from November 1987 to October 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Entitlement to service connection for residuals of repair rotator cuff tear of right shoulder is granted. Service connection will generally be awarded when a veteran has a 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that her right shoulder disability, for which she is seeking service connection for residuals of repair rotator cuff tear of right shoulder, is etiologically related to her active service. Specifically, she asserts that she injured her right shoulder when she fell off a ladder during active service sometime between September through December of 1989. See January 2020 Board Hearing. In March 2011, the Veteran underwent surgery on her right shoulder, arthroscopy, followed by open repair of the rotator cuff and decompression of the subacromial space. See March 2011 Medical Treatment Records. Thus, the Veteran has a current right shoulder disability and the first element of service connection has been met. As discussed above, the Veteran states that she initially injured her right shoulder as a result of falling off a ladder during service. The Veteran recalled that sometime between September to December of 1989, she served on active duty as a motor sergeant and was working in the motor pool; she testified that she fell off a ladder; as she fell, she put her arm out and hit her toolbox and felt a tear in her shoulder. See January 2020 Board Hearing. She stated that she went to a medic and received some Motrin; she testified that at the time, service members simply let their injuries heal and kept going. See id. Her wife testified that the Veteran could not do normal tasks after the fall, such as start the lawnmower. See id. The Veteran testified that her right shoulder disability continued to worsen during active service and after discharge. See id. She stated that the army was not doing MRI’s at the time, and that anytime someone complained of shoulder pain, the army medics told them they had bursitis. See id. She stated that the tear eventually healed itself, but the tear in her shoulder atrophied to the point that it never reattached to the bone. See id. The Veteran eventually fell again in 2010, many years after service, where the tendon completely tore, resulting in the Veteran undergoing surgery for right shoulder, arthroscopy, followed by open repair of the rotator cuff and decompression of the subacromial space. See id. The Board finds the Veteran competent to report on the onset and continuity of her right shoulder injury. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In light of the Veteran’s detailed and competent recollection of her in service-injury, the Board finds that the second element of service connection has been met - incurrence of a disease or injury in service. Finally, the Board finds that there is a nexus between the Veteran’s right shoulder disability and her injury incurred in active service. While chronicity of a right shoulder disability was not established during service, the Board finds the Veteran’s statements concerning her continuity of right shoulder symptoms following service to be credible. The finding that the Veteran has had right shoulder disability symptoms since service is supportive of the claim overall because it tends to show that the symptoms that began in service were the basis for the later diagnosed rotator cuff tear of right shoulder for which the Veteran underwent surgery for. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (recognizing lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere's disease). Additionally, the Veteran’s VA physician who completed her right shoulder surgery stated that the Veteran’s MRI showed she had “preexisting degenerative arthrosis involving the glenohumeral joint and acromioclavicular joint…” See January 2011 Medical Treatment Records. Indeed, the Veteran testified that the VA physician told her that her right shoulder had been torn previously, and that the damage was due to her first in-service fall. See January 2020 Hearing Transcript. While the Veteran suffered a second fall in 2010, the Board finds that the Veteran’s right shoulder was initially injured from her first fall in-service in 1989, as the VA physician who performed her shoulder surgery stated that the MRI of her right shoulder showed preexisting degenerative arthrosis. See January 2011 Medical Treatment Records. The Board notes that the Veteran’s July 2011 VA Examiner stated that her right shoulder disability was less likely than not related to service, stating that “although it is plausible, there is nothing that I can identify in the service medical record to show that the Veteran had right shoulder injury with ongoing symptoms during military service.” See July 2011 VA Examination. While the Board acknowledges that the Veteran’s Service Treatment Records (STRs) are silent for a right shoulder injury, the Board notes that the Veteran testified that as was common at the time, service members often forwent treatment and simply let their injuries heal and kept going. The Board finds the Veteran’s statements regarding the onset and continuity of her symptoms competent and credible. Additionally, the Board notes that the VA physician who performed the Veteran’s right shoulder surgery stated that the Veteran’s MRI showed “preexisting arthrosis.” In the absence of any competent and credible evidence supporting a contrary finding, the Board concludes that the Veteran’s current right shoulder disability had its onset during service. Thus, service connection for residuals of repair rotator cuff tear of right shoulder is granted. See 38 C.F.R. § 3.303. REASONS FOR REMAND 2. Entitlement to a disability rating in excess of 10 percent for lumbosacral and thoracic degenerative joint disease, degenerative disc disease and spondylolisthesis is remanded. The Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s service-connected lumbosacral and thoracic degenerative joint disease, degenerative disc disease and spondylolisthesis (low back disability). See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). In a January 2020 Board Hearing, the Veteran indicated that her low back disability had gotten “a lot worse” since her last VA examination. The Veteran’s last Compensation and Pension (C&P) examination was in July 2011. See July 2011 C&P Examination. Considering that the Veteran’s last examination occurred 8 years ago and the evidence that her disability picture may have changed, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran’s service-connected low back disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability…the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Therefore, a new VA examination assessing the current severity of the Veteran’s service-connected low back disability is warranted. On remand, the Veteran’s updated VA treatment records should also be obtained. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Board notes that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised as part and parcel of the Veteran’s claim for an increased rating for her service-connected low back disability. See January 2020 Board Hearing. Accordingly, the Board has jurisdiction over this issue. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, because a decision on the remanded issue of entitlement to a higher rating for a low back disability could impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined, a remand of the claim for a TDIU is also required. Finally, on remand the Board finds that a VA examination and opinion are warranted to address the impact of the Veteran’s service-connected disabilities on her occupational functioning. The matters are REMANDED for the following action: 1. Send the Veteran sufficient VCAA notice as to her claim of entitlement to a TDIU. 2. Send the Veteran a formal application for TDIU (VA Form 21-8940) and request her to complete and return the form. 3. Obtain the Veteran’s VA treatment records, dated from March 2012 to March 2015, and dated from January 2020 forward. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her lumbosacral and thoracic degenerative joint disease, degenerative disc disease, and spondylolisthesis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 5. Schedule the Veteran for an appropriate VA examination to evaluate the issue of entitlement to a TDIU. The examiner should elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the impact of her service-connected disabilities on her employment. After a full examination and review of the claims file, the examiner should identify all limitations imposed on the Veteran as a consequence of her service-connected disabilities (i.e., residuals of repair rotator cuff tear of right shoulder; lumbosacral and thoracic degenerative joint disease, degenerative disc disease, and spondylolisthesis; and residuals of a fracture of the left ankle). The examiner is asked to comment on and describe the functional impairment caused solely by the service-connected disabilities as it pertains to the Veteran’s ability to function in an occupational environment. The opinion need not state whether the Veteran’s disabilities prevent her from obtaining or maintaining substantially gainful employment, or whether the Veteran is capable of sedentary employment. Rather, the examiner should discuss how and to what extent the Veteran’s service-connected disabilities affect her ability to perform occupational tasks. The examiner should, for instance, describe the limitations and restrictions imposed by her service-connected conditions with respect to factors such as her ability to sit, stand, walk, lift, carry, push, pull, bend, and maintain energy and focus for up to eight hours per day, and in terms of whether such disabilities might require absences from work and/or breaks from work. (Continued on the next page)   The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.