Citation Nr: 21067288 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-33 155 DATE: November 3, 2021 ORDER Entitlement to service connection for left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear is granted. REMANDED Entitlement to an increased rating in excess of 50 percent for an acquired psychological disorder, to include anxiety disorder, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a lower back injury, to include as secondary to service-connected residual scars, is remanded. Entitlement to individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The probative evidence of record demonstrates that the Veteran's left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear is etiologically related to his combat service. CONCLUSION OF LAW The criteria for service connection for left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear are 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 in the United States Army from April 1967 to January 1969. He is also in receipt of the Purple Heart Award, in recognition of his heroic combat service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Regarding the Veteran's psychiatric disability claim, his appeal stems from his December 2012 claim for an increased rating for the disability, which was initially denied in an October 2013 rating decision. The Veteran appealed the continued 50 percent rating for the disability in October 2015. Thereafter, the RO readjudicated the issue in an August 2017 rating decision that continued the currently assigned 50 percent rating. Although the RO characterized the issue as arising from a May 2017 increased rating claim, the Board notes that the issue was still on appeal at the time of the August 2017 rating decision. As such, the period under consideration for the Veteran's psychiatric disability claim dates back to his December 2012 claim for an increased rating. Although the Veteran initially requested to participate in a hearing before a Veterans' Law Judge, in July 2021, his representative submitted written correspondence withdrawing the previous hearing request. Service Connection The Veteran seeks service connection for a left shoulder disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish service connection for a claimed disability on a direct basis, there must be competent evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, the law also provides that, in the case of any veteran who engaged in combat with the enemy, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, condition, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. In this case, the Veteran's Certificate of Release or Discharge, DD-214 reflects that his decorations and awards include, in part, the Vietnam Service Medal and the Purple Heart. Further a March 1968 report to the Veteran's family reflects that he received a left arm laceration and was hit by fragments from a hostile mortal round on March 5, 1968 as a result of hostile action. Based on this evidence, the Board presumes the Veteran engaged in combat. 38 U.S.C. § 1154(b). Further, the Board finds that the Veteran has current diagnoses of left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear, bilateral sensorineural hearing loss and tinnitus. Thus, pertaining to these conditions, the question before the Board is whether a nexus exists between the conditions and the Veteran's combat service. 1. Entitlement to service connection for left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear is granted. The Veteran contends that his left shoulder injury and lumbar spine condition is a result of service, to include as due to his service-connected scar condition. In his December 2013 Notice of Disagreement (NOD), the Veteran stated that he felt that the service-connected shrapnel wound to the left shoulder caused the current shoulder condition. He contends that his left shoulder disorder is not due to impairment of collarbone, and notes that no x-ray or MRI was done to determine if there is any internal scarring or calcification to the left shoulder. A March 1967 service treatment record (STR) notes bilateral stress fracture of the first rib, chest pain. An October 1967 STR reveals that the Veteran suffered a collarbone injury when footlocker fell on him. A March 1968 record notes a report to the Veteran's family that he received a left arm laceration and was hit by fragments from a hostile mortal round on March 5, 1968, as a result of hostile action. A December 1968 STR reflects note that the Veteran had small abrasion of left knee during a mortar attack after he tripped and fell. In a July 2019 statement, the Veteran said that on an April 1968 night mission outside of Pleiku, Vietnam, he was under heavy sniper fire, he was told to jump and when he did, he landed on his left shoulder on a steel helmet. He reported having left shoulder pain since the incident, and he stated that he has had ongoing pain and problems with his left shoulder ever since; in support of this contention, he emphasized that he sustained multiple rib fractures while on active duty, with continuing residuals up until present day. He also stated that he believes the weight of the flight helmet and the other flight gear also contributed to the development of his left shoulder disability. The Veteran underwent a VA examination of his left shoulder in July 2013. The examiner noted review of a May 2013 MRI and diagnosed the Veteran with left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear, per the May 2013 imaging. The examiner noted the Veteran's description of flying out on helicopters, falling out directly on his left shoulder in service, and his shoulder bothering him since service. The examiner opined that the left shoulder condition is less likely than not (less than 50 percent or greater probability) incurred in or caused by collarbone injury on Oct 20, 1967. The examiner rationalized that there is insufficient objective evidence in the STRs for a left shoulder injury as the STRs contain documentation for a collarbone injury and the exit examination is silent for a shoulder condition. Here, the Board notes that the July 2013 VA opinion does not reflect adequate consideration of the nature of the Veteran's service, his lay statements, or the other medical evidence of record. Instead, the examiner's rationale reflects the bare conclusion that because the STRs contain documentation for a collarbone injury and the exit examination is silent for a shoulder condition, no nexus was established. In each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154. Further, it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds the opinion is inadequate and therefore assigns the opinion no probative value. Even though the VA examiner's inadequate opinion is the only medical opinion pertaining to whether the Veteran's claimed left shoulder disability was incurred in service, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran's favor and therefore a remand is not necessary to obtain another medical opinion as the available evidence is sufficient for that purpose. 38 C.F.R. § 3.159(c)(4); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In this regard, the Board finds that the Veteran's competent, credible report of left shoulder problems since his service is probative evidence of a sustained combat injury and provides sufficient evidence that his current left shoulder disability was incurred in combat. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). After resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear is warranted, particularly in light of the Veteran's combat-related injury and his credible account of symptoms since such injury. Accordingly, a grant of a claim for service connection for with left shoulder tendinopathy and partial thickness tear of the supraspinatus and biceps tendons with superior labral tear is warranted. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 50 percent, for an acquired psychological disorder to include anxiety disorder not otherwise specified, is remanded. The Veteran contends that he is entitled to a 70 percent rating for his service-connected acquired psychological disorder. The Board notes that the claim is a non-initial increased rating claim and the time period on appeal is from December 31, 2012, to present, which includes consideration of evidence one year prior to the receipt of the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In his May 2017 claim for individual unemployability, the Veteran indicated that he received treatment at the Ocala VA Vet Center and Gainesville VA Vet Center. Although the Veteran, through his attorney, submitted numerous records from these Vet Centers, the record does not reflect that the VA attempted to obtain any further records from these treatment centers. 38 C.F.R. § 3.159. Thus, the Board finds that remand is warranted to obtain any outstanding treatment records. Moreover, the medical evidence indicates that the Veteran's psychiatric disability may have worsened since he was last afforded a VA examination in August 2017. Specifically, the medical evidence shows that the Veteran's psychiatric diagnoses have expanded to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), with both diagnoses supported by medical opinions relating the disorders to the Veteran's military service. The Veteran has also submitted lay statements and medical evidence suggesting that his service-connected disability may have worsened. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Given the medical and lay evidence indicating worsening psychiatric symptoms, the claim is remanded to afford the Veteran a new examination. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. In his June 2017 formal appeal to the Board, the Veteran asserted that his hearing disorders are due to his in-service noise exposures. The Veteran underwent an VA hearing loss and tinnitus examination in March 2015 and the examiner provided a negative opinion against the claims. The Board finds, however, that the March 2015 opinions do not consider the Veteran's lay statements regarding his military noise exposure and the onset of the disorders. Further, the examiner's rationale does not include consideration of the Veteran's risk of noise exposure related to his military occupational specialty (MOS) of Aircraft Hydraulics Repairer nor other duties and incidents incurred in service, including mortar attacks. 38 U.S.C. § 1154. Thus, the Board finds that the opinions are inadequate. Here, the Board notes that while the combat presumption removes the need to corroborate certain lay evidence, it does not remove the need for any evidence that demonstrates that the disability is related to combat at all. In this regard, the Board is unable to determine whether the Veteran's bilateral hearing loss and tinnitus is due to combat or service based on the lay and medical evidence of record. As such, remand is warranted to obtain adequate opinions. 4. Entitlement to service connection for a lower back injury is remanded. In his December 2013 NOD, the Veteran asserted that his lower back condition is directly related to an in-service shrapnel injury. He highlighted that x-rays or MRIs were not performed to determine if any internal scarring or calcification from his shrapnel injury caused lower back pain. Thus, in addition to direct service connection, the Veteran has essentially asserted that his low back disorder is secondary to his service-connected shrapnel injury scars. A December 2001 VA treatment record notes the Veteran's report of low back pain since work injury approximately in September 2000. A May 2011 VA treatment record notes that the Veteran became disabled due to back pain eight years prior and that he previously worked as a welder. An October 2014 VA treatment record notes chronic low back pain and the prescribed medication. Here, the Veteran has not been afforded a VA examination for his low back disorder. VA is required to obtain an opinion when there is insufficient medical evidence to decide the claim, but the record otherwise contains competent evidence of a disability or recurrent symptoms, evidence of an in-service event, and evidence of an indication of a nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, although there are no in service complaints regarding the back injury and the record of evidence reflects the December 2001 VAMC treatment record notes that the Veteran reported low back pain since a post-service work injury, the record also reflects that the Veteran has chronic low back pain and sustained a shrapnel injury during his combat service. His statements have also raised the issue of whether secondary service connection is warranted, which is not addressed by the current medical evidence. Thus, the Veteran must be provided a VA examination to determine the nature and etiology of his claimed back disorder. 5. Entitlement to individual unemployability due to service-connected disabilities is remanded. The Board finds that the Veteran's above claims are inextricably intertwined with the claim of entitlement to individual unemployability. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any updated and outstanding VA or private treatment records and associate those records with the claims file, notably, request the Veteran's VA Vet Center Treatment Records from Ocala and Gainesville. 2. After completion of the above development, schedule the Veteran for an examination to determine the nature and severity of his service-connected acquired psychiatric disorder. The claims file must be made available to and reviewed by the examiner. The examiner is asked to identify all of the Veteran's psychiatric diagnosis and specifically note any diagnosis related to his military (combat) service and/or any service-connected disability. If possible, the examiner is asked to differentiate the symptoms for each identified diagnosis. The examiner should also comment as to the impact of the Veteran's psychiatric disability on his ability to perform activities of daily and occupational tasks. The examiner must provide the rationale for all opinions provided. The RO must ensure that the examination report includes all information necessary to rate the disability. 3. After the records development is complete, forward the claims file to an appropriate clinician to determine the nature and etiology of his bilateral hearing loss and tinnitus. Schedule an in-person examination only if deemed necessary to answer the question below. Whether it is at least as likely as not (50 percent probability or greater) that the bilateral hearing loss and tinnitus originated during or is otherwise etiologically related to the Veteran's military service, to include as due to his combat service, conceded noise exposure or November 1968 bug in ear incident. The examiner is to directly address the complete lay and medical evidence of record. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his low back condition. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all low back disability present during the period of the claim. The examiner is requested to review the electronic claims file and offer an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the disability originated during or is otherwise etiologically related to the Veteran's military service, to include his combat service, any in-service injuries, or the physical rigors of service. (b) Whether it is at least as likely as not (50 percent probability or greater) that the disability is proximately due to or aggravated by a service-connected disability. The complete rationale for all opinions provided is required. 5. Undertake any additional development deemed necessary for the TDIU claim. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.