Citation Nr: 21063913 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-17 329 DATE: October 18, 2021 ORDER Entitlement to service connection for residuals of a right shoulder injury, including bicipital tendonitis, is granted. Entitlement to service connection for hemorrhoids is granted. REMANDED Entitlement to service connection for a bilateral hip disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the evidence of record is at least evenly balanced to support a finding that the Veteran's residuals of a right shoulder injury, including bicipital tendonitis, originated during active duty service or active duty for training (ACDUTRA) during performance in a Senior Reserve Officer Training Corps (ROTC) program. 2. Resolving all reasonable doubt in the Veteran's favor, the evidence of record is at least evenly balanced to support a finding that the Veteran's hemorrhoids originated during active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a right shoulder injury, including bicipital tendonitis, have been met. 38 U.S.C. §§ 101(22, 24), 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. §§ 101(22, 24), 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1985 to August 1999 (with a portion of this service, from May 1985 to May 1989, being in a Senior ROTC program at the Veteran's undergraduate institution), July 2002 to July 2003, October 2005 to April 2006, and August 2012 to July 2013. The Veteran also has other extensive service of inactive duty as a reservist. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a January 10, 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing conducted on July 9, 2021, with his attorney present. A transcript of the hearing has been produced for Board review. At the Veteran's hearing, the attorney confirmed that the Veteran's claim for an increased rating for a burn scar was purposefully omitted from the VA Form 9, see VA Form 9 (rec'd Mar. 19, 2018), because the Veteran did not wish to further prosecute this appeal, see Hearing Tr. (July 9, 2021), at Page 3. The Board concludes that that appeal as to this issue was not perfected, and the Board has no jurisdiction over the matter. Alternatively, the Board notes the testimony from the same hearing that the Veteran wished to withdraw this claim on appeal only. See id. at Pages 2-3. Assuming arguendo that jurisdiction over the claim for an increased rating for a burn scar on the neck were proper as of the hearing, the Board would find the Veteran's testimony to be clear, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Ultimately, the Veteran has withdrawn his appeal concerning this issue only, and there remains no allegation of error or fact or law for appellate consideration therein. The Board accordingly asserts jurisdiction over the claims for service connection for the following: a right shoulder disorder, hemorrhoids, a bilateral knee disorder, and a bilateral hip disorder. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection is established evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Ultimately, the Board will be granting the claims for service connection for the right shoulder and hemorrhoid disorders in full on direct bases; therefore, no discussion is required of other theories of service connection. The term "active military, naval or air service" is further defined as (1) active duty or a period of active duty training (ACTDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of inactive duty training (INACTDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101(24). Service connection for disability arising from INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Generally, ACDUTRA includes duty performed by a member of a Senior ROTC program only when ordered to such duty for the purpose of training or a practice cruise under chapter 103 of title 10 for a period of not less than four weeks and which must be completed by the member before the member is commissioned. 38 U.S.C. § 101(22)(D). Ultimately, the Veteran's Service Record characterizes the Veteran's ROTC service as active duty, see Service Record (rec'd June 30, 2016). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for residuals of a right shoulder injury, including bicipital tendonitis, is granted. The Veteran's shoulders were examined in December 2016, and he was diagnosed with bicipital tendonitis, ankylosis of glenohumeral articulations, and chronic calcific tendonitis of the humeral headall on the right side. See VA Exam (Dec. 20, 2016), at Question No. 1B. See also, e.g.: STR (Jan. 20, 2011), at Q12a ("chronic shoulder instability repaired in November 2007 arthroscopically"). There is no serious dispute of a current disability. As for an initial injury, the Veteran testified at his July 2021 Board hearing that after a subluxation of the right shoulder incurred in a swimming pool, he nevertheless was subsequently cleared for active duty, but longterm strain and wear and tear rendered 2007 surgery necessary. See Hearing Tr. (July 9, 2021), at Pages 3-6. The Veteran stated that he wished to conceal his injuries so that he could enter service, and then further concealed as long as possible because "you want to do your job and do it well...you just want to be as capable a pilot as you possibly can be, so you push the envelope of your own capability." See id. at Page 17 (cleaned up). The Board notes that there are no contemporaneous complaints of a shoulder injury, until a reinjury in April 2007, surgery in November 2007, full recovery by March 2008, and ultimately requiring a waiver to continue duties as a pilot despite the shoulder surgery. See, e.g.: STR (Oct. 30, 2007; Mar. 20, 2008; Jan. 20, 2011; Feb. 11, 2013). The Board finds the Veteran highly credible in his testimony about the chronology of his injuries in conjunction with his military career. The Board finds that the evidence of record is at least evenly balanced to support a finding of an in-service right shoulder injury. Alternatively, the Board could find that if a shoulder injury preexisted service or was otherwise incurred while not on active duty, there is no notation of a shoulder injury upon any enlistment or reenlistment examination. See Wagner v. Principi, 370 F.3d 1089 (2004); Horn v. Shinseki, 25 Vet. App. 231 (2012). The presumption of soundness would therefore not be rebutted if at issue. Turning to the question of whether there is an etiological relationship between the Veteran's right shoulder disorder and service, the Board notes that the record contains three separate etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. In a December 2016 examination report, the VA examiner opined that the shoulder injury was at least 50 percent likely attributable to service, and she indicated that this conclusion was based upon a full review of all service treatment records. See VA Exam (Dec. 20, 2016), at Question No. 4 et seq. In a subsequent opinion, see VA Exam (Sept. 30, 2017), at Question no. 3 et seq., the VA examiner opined that as due to no in-service medical treatment for the shoulder and ultimately undergoing surgery while not on active duty, there was no basis for finding military etiology. To the extent that this examiner appears to have relied on an absence of medical evidence, medical opinions that rely solely on absence of evidence from the record are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007). Finally, the Veteran submitted a May 2018 opinion from a private physician, see Medical Treatment Record from Dr. M.L. (May 23, 2018) (rec'd July 14, 2021). The physician clearly concluded that "I do feel the patient's military career including his injury while in the [ROTC] led to the problem in his shoulder that ultimately led to the tear of the labrum requiring surgery. He clearly has chronic damage to his cartilage surface at the time of surgery which is not due to a one-time injury, but more likely than not can be attributed to the wear and tear of the physical requirements of a 20+ year military career." See id. This opinion offers a clear conclusion with a reasoned medical explanation connecting the Veteran's current right shoulder disorder to his active duty service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). This opinion also appears to properly consider the Veteran's history of concealing injuries so that he could remain in service as a pilot, as the Veteran testified. The Board affords this May 2018 opinion probative weight, but ultimately concludes that it is entitled to at least as much probative weight as the contrary September 2017 examination report. For all of the reasons above, after resolving all reasonable doubt in the Veteran's favor, the Board concludes that the evidence of record is at least evenly balanced to support a finding that the Veteran's current right shoulder disorder is related to his military service. As such, the benefit sought on appeal must be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to service connection for hemorrhoids is granted. The Veteran has competently and credibly testified as to having symptoms of hemorrhoids starting as early as 1991, and then more severely since 2005 (both periods of active duty), due to his performing "the hook maneuver," which, as the Veteran testified during his July 2021 Board hearing, is necessary for pilots to perform while flying. In short, the "hook maneuver" is done so that blood stays in the upper body in order to prevent blackouts and vision loss while flying, but because it is analogous to simulating bowel movements, a side effect is hemorrhoids. See generally Hearing Tr. (July 9, 2021), at Pages 14-7. The Board finds no reason to call into question the Veteran's report of history and self-identification of current symptoms that were previously medically attributed to hemorrhoids during and immediately after his period of active duty service. Accordingly, a current disability is established. Meanwhile, the Board is in receipt of the Veteran's service treatment records, and these contain contemporaneous complaints of hemorrhoids consistent with the Veteran's testimony about the circumstances of his service and the chronology of his disorder. See, e.g.: STR (Jan. 31, 1991; Jan. 20, 2011; Apr. 6, 2011; Feb. 7, 2012). As noted above, the Veteran is competent to attest to his observable symptoms. The Board finds his assertion that he has experienced symptoms such as flare-ups within his rectum since their first manifestations during service to be both competent and credible. The Veteran's service treatment records contain compelling evidence that he suffered from hemorrhoids while on active duty, and it is presumed that he did not enter service with this condition. The Board accordingly finds that service connection for hemorrhoids is granted based on in-service onset. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. There is no remaining doubt to resolve. Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disorder is remanded. 2. Entitlement to service connection for a bilateral knee disorder is remanded. Examinations of the bilateral hips and knees were performed in December 2016. When VA undertakes to provide VA examinations or obtain VA opinions, it must ensure that they are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner ultimately concluded that as no current disorders could be diagnosed upon examination for either knee or hip, there could be no service connection. Due to subsequent binding jurisprudence, the Board is precluded from issuing determinations as to these claims, and will accordingly remand these claims for further development. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain alone can be a functional impairment and therefore qualify as a disability for the purpose of establishing service connection. Specifically, the Federal Circuit expressed that under 38 U.S.C. §§ 1110, [1131], "disability" refers to the functional impairment of earning capacity, not the underlying cause of said disability; thus, pain can function as a "disability" without any current underlying condition, as pain itself diminishes the body's ability to function. Nonetheless, the Federal Circuit explained that to establish the presence of a disability based on subjective pain, a Veteran need to show that his or her pain reaches the level of a functional impairment of earning capacity. Accordingly, a remand is necessary to obtain a VA examination opinion consistent with the Federal Circuit holding in Saunders. In short, the Veteran has consistently claimed pain in his bilateral knees and bilateral hips (the lateral of which was sometimes mistaken for back pain). See VA Exams (Dec. 20, 2016), at Question No. 1B. Under Saunders, this may be a diagnosis which would warrant service connection. The claims for bilateral hip and knee disorders are remanded accordingly. The Board sincerely regrets additional delay that may be incurred due to this remand. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, afford the Veteran a VA examination by a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran's claimed bilateral hip and knee disorders. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. The need for further in-person examination is left to the discretion of the examiner. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: (a.) Identify all pertinent and applicable diagnoses of any bilateral knee or hip disorder(s) that may have manifested during the period on appeal. If there are none, then this negative diagnosis will have to be specifically reconciled with the Veteran's claims of pain and the recent holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For any diagnosed bilateral knee disorder, is it at least as likely as not (a 50 percent probability or greater) that such was incurred in or is otherwise related to the Veteran's active service, to specifically include as a result of running injuries? (c.) For any diagnosed bilateral hip disorder, is it at least as likely as not (a 50 percent probability or greater) that such was incurred in or is otherwise related to the Veteran's active service, to specifically include as a result of running injuries? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.