Citation Nr: 21064526 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 12-21 589 DATE: October 20, 2021 ORDER Entitlement to service connection for a right shoulder disability is granted. REMANDED Entitlement to service connection for a right arm disability, to include a disability manifested by numbness of thumb and index finger, is remanded. FINDING OF FACT Currently diagnosed right shoulder impingement syndrome and degenerative joint disease are etiologically related to the in-service injury diving into a bunker. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In October 2016, the Board denied the Veteran's claims for service connection. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In July 2017, the Court granted a Joint Motion for Remand (JMR) requesting vacatur and remand of the Board's decision. The matter was returned to the Board and remanded twice for additional development. In November 2019, the Board denied these service connection claims. The Veteran again appealed the decision to the Court. In September 2020, the Court granted a JMR requesting vacatur and remand of the Board's decision. The Board then remanded the matters once more in May 2021 for additional development. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis, also known as degenerative joint disease, is a listed condition. The Veteran reported that while in Vietnam, he attempted to dive into a bunker during a rocket and mortar attack, and in doing so struck his right shoulder on the wooden door frame. He went to sick call, and the corpsman told him he had a pinched nerve which would resolve on its own. The Veteran reports, however, that he continued to have pain and discomfort since that time, which has worsened over time. The Board determined that the Veteran's account of injury, as well as his reports of continuity of symptoms, were credible, and instructed that on Remand an examiner shoulder consider such in opining as to any nexus to service. Unfortunately, while the June 2021 examiner did discuss the in-service events, he ultimately, and in contradiction of the Remand, rejected the accounts as contradicted by the medical records, which did not document the Veteran's ongoing complaints. Accordingly, the resulting negative opinion cannot be given any probative weight, similar to the prior opinions of record. Nevertheless, further remand is not necessary with regard to the right shoulder, as there is sufficient evidence of record to resolve the matter. It has previously been established that the Veteran's reports of injury in service and continuity of symptoms are credible. Post-service medical evidence establishes current disability; impingement syndrome and degenerative joint disease of the right shoulder joint were identified on the most recent examination, and rotator cuff tendonitis was noted in a 2015 examination. It is noted that impingement syndrome and rotator cuff impairments are related conditions. The sole remaining question, then, is whether a nexus between the injury and disability is established. The Board finds that it is. The Veteran sustained an injury in service, and has continuous symptoms since service. As is noted above, he is credible in reporting such, but the Board notes additionally that he is competent to do so. A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). This extends to his observation of the direct cause and effect relationship between injury and the onset of symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, there is evidence of an in-service shoulder injury, continuous symptoms and complaints, and a directly observed nexus. Moreover, as one of the current disabilities is a listed chronic disease, the evidence of continuity of symptoms affords an alternative path to direct service connection. Service connection for the right shoulder disability is warranted. REASONS FOR REMAND Remand is again necessary to obtain a VA examination that fully complies with the May 2021 Board Remand directions with regard to the neurological disability of the right arm and hand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). The May 2021 Remand classified two of the Veteran's reports as credible: his report of striking his right shoulder while diving into a bunker as well as his report that he had had continued right shoulder and right arm symptoms since that injury. The May 2021 Remand then directed the AOJ to obtain a VA examination and medical opinion that addressed those two credible reports. Additionally, the May 2021 Remand directed the AOJ to obtain nerve conduction studies, unless such studies were deemed unnecessary by an examiner. That examiner would then have to explain why the studies were not warranted. While the above grant of service connection for a right shoulder disability effectively resolves one of the shortcomings of the June 2021 examination, there is an insufficient basis to resolve the question of whether neurological complaints are related to the shoulder disability, the in-service injury recounted above, or some other in-service event or injury. In large part, this is because the Veteran also has a nonservice-connected cervical spine disability, post-surgery, which is manifested by radicular symptoms. The Board Remand requested nerve conduction studies, or an explanation as to why such were not required, to identify any and all non-cervical symptoms. However, the examiner did not address the need for nerve conduction studies. Because these remand directions were not followed, a VA examination and medical opinion that complies with those directions must be obtained on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA peripheral nerves examination to determine the nature and etiology of any right arm and hand disabilities. The examiner must review the Veteran's claims file in conjunction with the examination. All necessary testing, including nerve conduction studies, should be completed. If such testing is deemed unnecessary, the examiner should explain why this is so. Following review of the claims folder and examination of the Veteran, the examiner must: a) Identify any current right arm or hand disabilities that presently exist or that have existed during the appeal period. b) Differentiate between symptoms related to the cervical spine and any other pathology or diagnosis. c) Opine whether it is at least as likely as not (a 50 percent probability or greater) that each diagnosed right arm and hand neurological disability is caused or aggravated by service or a service-connected disability, to include the right shoulder disability. An injury to the shoulder in service when diving into a bunker, as described above, is established, as are the immediate onset of symptoms related to a "pinched nerve." Additionally, the presence of a scar on the right hand must be discussed. A full and complete rationale is required for all opinions expressed. 2. Then, readjudicate the claim. If the benefits sought remain denied, issue a supplemental statement of the case and return the matters to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.