Citation Nr: 21002628 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-10 580 DATE: January 14, 2021 ORDER Service connection for left shoulder rotator cuff tendinopathy with degenerative joint disease is granted. REMANDED Entitlement to service connection for right elbow disability is remanded. Entitlement to service connection for right wrist disability is remanded. Entitlement to service connection for left wrist disability is remanded. Entitlement to a compensable rating for residual scars from removal of squamous cell carcinomas is remanded. Entitlement to service connection for left ankle disability, including Achilles tendon is remanded. Entitlement to service connection for right ankle disability, including Achilles tendon is remanded. Entitlement to service connection for right shoulder disability is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s left shoulder rotator cuff tendinopathy with degenerative joint disease are due to injury in service. CONCLUSION OF LAW The criteria for service connection for left shoulder rotator cuff tendinopathy with degenerative joint disease have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1985 to April 1989, May to June 1998, June to September 2000, January 2003 to January 2004, March to October 2004, October 2005 to August 2006, and October 2006 to July 2007. He also served in the National Guard and Reserve from 1989 to 2015. 1. Service connection for left shoulder rotator cuff tendinopathy with degenerative joint disease Service connection may 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). To establish entitlement to service-connected compensation benefits, 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” – also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). 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 is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to describe symptoms observable to his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the evidence, the Board finds the criteria for service connection for left shoulder rotator cuff tendinopathy with degenerative joint disease have been met. 38 C.F.R. § 3.303. First, the evidence shows a current left shoulder disability. The July 2017 VA examiner diagnosed left rotator cuff tendinopathy with degenerative joint disease. Similarly, a November 2016 private MRI of the left shoulder revealed partial-thickness, bursal-surface fraying/mild tearing of the critical zone of the supraspinatus tendon, pronounced subacromial/subdeltoid bursitis/synovitis, mild supraspinatus muscle belly atrophy, tearing of the superior and anterior aspects of the glenoid labrum, superior labral tearing extending into the biceps anchor, moderate acromioclavicular joint degenerative change, and small, shelf-like subacromial enthesophyte. Accordingly, the evidence satisfies the first element of service connection. See Holton, 557 F.3d at 1366. Next, the evidence shows an in-service injury. The Veteran has reported injuring his left shoulder during a parachute jump when his left arm was caught on a static line. Service treatment records from April 1986 show treatment for a left arm injury to the humerus from a static line during a jump. The evidence also satisfies the second element of service connection. See Holton, 557 F.3d at 1366. Finally, the evidence establishes a nexus between the in-service injury and the current disability. The July 2017 examiner opined that the left shoulder disability was at least as likely as not caused by the in-service injury. The examiner explained that the in-service injury was described as a contusion to the biceps not the shoulder, but the injury was significant enough to prompt a humerus x-ray. The examiner also noted that the Veteran reported persistent issues with the shoulder since service. The examiner concluded that because the Veteran is right hand dominant, the presence of this condition in the nondominant extremity with the absence of a competing etiology leads to the conclusion that the injury is at least as likely as not related to the jump injury in service. The Board finds the medical opinion highly probative as it considers the evidence of record and provides detailed explanation. As the evidence establishes a current disability, in-service injury, and nexus between the two, the criteria for service connection for the left shoulder are met. See Holton, 557 F.3d at 1366. REASONS FOR REMAND The remaining claims are remanded for additional development. 1. Entitlement to service connection for right elbow disability is remanded. The July 2017 examiner diagnosed right elbow biceps tendonitis. The Veteran reported having strained tendons in his elbow during an April 5, 2010, report of medical history, and service treatment records from March 15, 2014, show an assessment of right elbow tendonitis. In his July 2018 notice of disagreement, the Veteran reported landing on his right side during his numerous parachute jumps with equipment. A disability may qualify for service connection if caused or aggravated during active duty, by an injury during a period of active duty for training (ADT) or inactive duty training (IDT), or by a disease during a period of ADT. 38 U.S.C. §§ 101(24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304; Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Veteran’s service personnel records show that April 2010 and March 2014 were not during one of his periods of active duty. While personnel records show he served in the Army Reserve and National Guard from April 1989 to March 2015, the exact periods of ADT and IDT are not evidenced in the record. The Agency of Original Jurisdiction (AOJ) should make requests for the personnel records listing dates of ADT and IDT from the appropriate records repository. Additionally, as the Veteran has also reported injuring the right elbow during parachute landings during active duty, an adequate medical opinion is needed to address whether his current disability could be related to those repeated impacts. In the August 2017 opinion, the examiner provided a negative opinion citing to records of elbow treatment in March 2014 and September 2015. The examiner does not appear to have addressed whether the current disability could be related to the reported repeated impacts from parachute landings on his right side. Therefore, an adequate opinion should be obtained, which considers all relevant evidence including lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 2. Entitlement to service connection for right wrist disability is remanded. 3. Entitlement to service connection for left wrist disability is remanded. The July 2017 VA examiner diagnosed left chronic wrist sprain and right wrist arthritis. VA treatment records also show carpal tunnel syndrome in the right wrist. Service treatment records do not show treatment for wrist conditions and the Veteran has not reported a specific wrist injury. Instead, he asserts that he had repeated impacts on his wrists from bracing himself on parachute jump landings. He also reported having his “current symptoms since pretty much the duration of his service.” In the August 2017 opinion, the examiner did not address the left wrist condition beyond stating that he did not have arthritis in the left wrist. For the right wrist, the examiner found the disability was less likely than not due to service because of a lack of recorded treatment in service or evidence of an event or injury. Based on this statement, it appears the examiner did not adequately consider the Veteran’s reports of repeated impacts on his wrists from jump landings. Additionally, as the Veteran has reported continued symptoms, the examiner cannot rely solely on the lack of contemporaneous treatment records to base a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). A new opinion is needed. 4. Entitlement to a compensable rating for residual scars from removal of squamous cell carcinomas is remanded. In his July 2018 notice of disagreement, the Veteran reported having 13 scars on his back, neck, and arms due to removal of squamous cell carcinomas. Indeed, private medical records discuss biopsies taken from the left elbow, wrist, and upper back. The May 2016 and July 2017 examinations did not evaluate these scars or explain whether they were due to removal of squamous cell carcinoma. Specifically, the May 2016 examination only considered scars on the head, and the July 2017 examination provided a diagnosis but did not evaluate any scars. The AOJ should obtain a new examination to evaluate any scars on the head, face, and body and determine if they are due to removal of squamous cell carcinomas. 5. Entitlement to service connection for left ankle disability, including Achilles tendon is remanded. 6. Entitlement to service connection for right ankle disability, including Achilles tendon is remanded. The July 2017 examiner diagnosed right ankle lateral collateral ligament sprain and left ankle Achilles tendonitis with degenerative joint disease. Service treatment records show treatment for right Achilles tendonitis in January and February 1985 and right foot pain and overuse syndrome in May 1988. In a February 2013 statement, the Veteran indicated that the many parachute jumps, marches, and training with loaded rucksacks contributed to the wear and tear on his ankles. Additionally, the Veteran is service connected for left foot hallux valgus and has associated his left foot pain with left ankle symptoms. See July 2018 NOD. The VA examiner opined that ankle sprain and fracture could be an injury associated with parachute jumping but that no such injury was found on examination. Concerning the Veteran’s other in-service activities, the examiner stated that the Veteran reported being very physically active in service but with the absence of documented ankle injury, it would be speculative to attribute his chronic ankle sprain to service. The examiner does not appear to have considered the in-service treatment for right Achilles tendonitis and overuse syndrome or the service-connected left foot hallux valgus. As such, the opinion is not based on all the relevant evidence of record, and an addendum opinion is needed. See Nieves-Rodriguez, 22 Vet. App. at 295. 7. Entitlement to service connection for right shoulder disability is remanded. The July 2017 examiner opined that the right shoulder acromioclavicular joint osteoarthritis was less likely than not related to service and more likely attributable to a reported clavicle injury during adolescence, which the Veteran felt never healed correctly. The Veteran’s October 1984 enlistment examination does not document a pre-existing right clavicle or shoulder disability. However, the Veteran reported a history of a broken right clavicle on multiple reports of medical history after enlistment. As there was no notation at enlistment, the Veteran is presumed to have been in sound condition when he entered service. Therefore, the standard of proof required to show a preexisting disability is clear and unmistakable evidence, not equipoise. While there is no record of treatment for the right shoulder in service, the Veteran reported landing on the right side during numerous parachute jumps. A new medical opinion is needed to determine whether a right clavicle disability clear and unmistakably existed prior to service and was clearly and unmistakably not aggravated by service. See 38 C.F.R. § 3.304(b). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Make requests from the appropriate records repositories, including in the state(s) where the Veteran served in the National Guard and Reserves, for records identifying the Veteran’s periods of ADT and IDT. Requests for federal records should continue until the records are obtained or deemed unavailable. 3. Then, obtain a new medical opinion for the right elbow disability. A new examination is only needed if deemed necessary by the medical expert. The expert should review the evidence and address whether the current right elbow biceps tendonitis is at least as likely as not due to the reports of landing on the right side after numerous parachute jumps during active duty, or to the report of strained tendons in the elbows on April 5, 2010, or the treatment for right elbow tendonitis on March 15, 2014, if those dates were during documented periods of active duty training or inactive duty training. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 4. Obtain a new medical opinion for the bilateral wrists. A new examination is only needed if deemed necessary by the medical expert. The expert should review the claims file and address whether the current right and left wrist disabilities, including left chronic wrist sprain, right wrist arthritis and right carpal tunnel syndrome, are at least as likely as not due to the Veteran’s reports of bracing himself on parachute jump landings during active duty. The expert should consider the Veteran’s reports that he has experienced wrist symptoms since service. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 5. Schedule the Veteran for a new examination for scars resulting from removal of basal cell carcinoma. The examiner should consider and evaluate any scars on the Veteran’s head, face, and body and determine whether those scars are due to removal of basal cell carcinoma. In making such a determination, the examiner should consider private treatment records dated March 2016 and April 2017 in the claims folder. 6. Obtain a new medical opinion for the bilateral ankles. A new examination is only needed if deemed necessary by the medical expert. The expert should review the claims file and address the following: a. Are the current right and left ankle disabilities, including right ankle lateral collateral ligament sprain and left ankle Achilles tendonitis with degenerative joint disease, at least as likely as not due to in-service treatment for right Achilles tendonitis January and February 1985, right foot pain and overuse syndrome in May 1988, or the Veteran’s reports of wear and tear on his ankles from numerous parachute jump landings, marches, and trainings with heavy rucksacks during active duty? b. Was the left ankle Achilles tendonitis with degenerative joint disease at least as likely as not caused or aggravated (worsened) by compensation for the left foot hallux valgus? If aggravation is found, provide a baseline level of disability prior to aggravation. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 7. Obtain a new medical opinion for the Veteran’s right shoulder. A new examination is only needed if deemed necessary by the medical expert. The expert should review the claims file and address the following: a. Does the evidence clearly and unmistakably establish that the Veteran had a pre-existing right clavicle injury prior to service? b. If so, does the evidence clearly and unmistakably establish that the Veteran’s pre-existing right clavicle injury was NOT aggravated (worsened) by service? Consider his reports of falling on his right side on numerous parachute landings. (Continued on the next page)   All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.