Citation Nr: 21070790 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 13-20 176 DATE: November 26, 2021 ORDER Entitlement to service connection for a right shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is granted. Entitlement to service connection for a left shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is granted. Entitlement to service connection for a right clavicle disability, currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, is granted. Entitlement to service connection for a left clavicle disability, currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his right shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is etiologically related to an in-service right shoulder injury. 2. Resolving reasonable doubt in the Veteran's favor, his left shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is proximately due to his service-connected left clavicle disability. 3. Resolving reasonable doubt in the Veteran's favor, his right clavicle disability, which is currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, pre-existed service and increased in severity in service. 4. Resolving reasonable doubt in the Veteran's favor, his left clavicle disability, which is currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, pre-existed service and increased in severity in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for a right clavicle disability, currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, have been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 4. The criteria for entitlement to service connection for a left clavicle disability, currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, have been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to July 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in May 2018 and November 2019 for further development by the RO. The case has been returned to the Board for further appellate action. The November 2019 Board remand included a finding that, while the Veteran is considered sound as to his bilateral shoulder joints, he is not considered sound as to his bilateral clavicles and directed the RO to obtain medical opinions regarding service connection not only on a direct and secondary basis for his shoulders, but also for aggravation of a pre-existing clavicle condition. Accordingly, the present claim encompasses the clavicle claim as part of the shoulder claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Having so found, the Board will now proceed to adjudicate the claim. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). 1. Entitlement to service connection for a right shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is granted. The Board finds that the Veteran has a right shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, that is related to an in-service right shoulder injury, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). The record in this case is clear as to whether the Veteran has a right shoulder disability. The December 2019 VA examination noted bilateral glenohumeral joint osteoarthritis. See also May 2010 VA examination. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran's service treatment records (STRs) show a January 1971 right shoulder injury, specifically, a right shoulder anterior dislocation and a linear fracture, greater tuberosity, of the right humerus, as a result of being thrown from a bulldozer. See STRs received by VA in September 2014. Service connection may be presumed for certain chronic diseases, to include arthritis, which develop to a compensable degree within one year after discharge from service or which are established through continuity of symptomatology, following an in-service manifestation. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Here, as the STRs do not contain reports of shoulder arthritis and VA records do not indicate the presence of arthritis prior to approximately 2007, see May 2010 VA examination, the weight of the evidence is against an award of service connection on a presumptive basis. However, service connection for the right shoulder disability may still be granted on a direct basis. Based on the first two elements of service connection being satisfied, VA sought, multiple times throughout the pendency of this claim, a competent medical opinion regarding whether there is a causal relationship between the current disability and the in-service injury. The Board finds that none of the VA medical opinions of record adequately address the medical evidence of record. Moreover, the Veteran submitted a favorable medical nexus opinion in October 2018. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Having considered the evidence of record, and after affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's current right shoulder disability was incurred as a result of his January 1971 right shoulder injury. The VA examiners' opinions dated March 2017, March 2019 and December 2019 are opposed to this conclusion, but the Board finds that the contrary opinion of October 2018 by a VA physician's assistant deserves greater probative value. The October 2018 medical opinion offered an adequate statement of reasons and bases for its conclusions, and addressed the favorable evidence of record, specifically, the Veteran's lay statements. The examiner stated that the Veteran had been under VA care since December 2006. He reported being thrown from a bulldozer and injuring his right shoulder in January 1971. The Veteran also reported having intermittent shoulder pain since the injury. Having considered these reports, the examiner concluded that his present shoulder pain is, as likely as not, related to the injury he sustained in service. The Board finds that the medical opinions of March 2017, March 2019 and December 2019 are due less probative weight because they did not address the favorable evidence of record, specifically, the October 2018 medical opinion or the Veteran's lay statements set out therein regarding the onset and progression of his shoulder pain in and following service. Moreover, the rationales provided in the December 2019 medical opinions are inadequate, as they are conclusory rather than sufficiently explanatory. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for right shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is granted. The Board finds that the Veteran has a left shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, that is caused by his service-connected left clavicle disability, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. The record in this case is clear as to whether the Veteran has a left shoulder disability. The December 2019 VA examination noted bilateral glenohumeral joint osteoarthritis. See also May 2010 VA examination. Thus, the first element of service connection, the existence of a current disability, is satisfied. The Board has granted service connection for a left clavicle disability in the present decision, as set out in further detail below. Thus, the only remaining question for the Board is whether there is a nexus between the current left shoulder disability and the service-connected left clavicle disability. The Board previously sought a competent medical opinion regarding whether there is a causal relationship between a left shoulder disability and any shoulder or clavicle disability that was found to be service connected. See November 2019 Board remand. However, the December 2019 examiner opined against secondary service connection and did not find any shoulder/clavicle disability to be service connected. As noted above, VA has sought, multiple times throughout the pendency of this claim, a competent medical opinion regarding whether there is a causal relationship between the current left shoulder disability and service or a service-connected disability. The Board finds that none of the opinions of record adequately address the Veteran's lay statements or the medical evidence of record. Moreover, there is favorable evidence of record supporting a finding that the Veteran's left shoulder disability is due to his service-connected left clavicle disability. The March 2017 VA examiner, in opining against direct service connection, stated that "the veteran had pre-existing bilateral clavicle fractures, which is more likely the contributing factor to his bilateral shoulder arthritis." This supports a finding that the left shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is proximately due to the service-connected left clavicle disability, which is currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Having considered the evidence of record, and after affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's current left shoulder disability is caused by his service-connected left clavicle disability. The Board acknowledges that it has not granted an award of service connection on a direct theory of entitlement. However, the opinions of record regarding direct service connection dated March 2017, March 2019 and December 2019 are inadequate for the reasons set out above. Furthermore, an award of service connection on the basis of secondary causation is not a lesser benefit, and the Veteran is not prejudiced thereby. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left shoulder disability is caused by his service-connected left clavicle disability. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for a left shoulder disability, currently diagnosed as glenohumeral joint osteoarthritis, is warranted on a secondary causation basis. 38 U.S.C. § 5107(b); 38 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a right clavicle disability, currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, is granted. 4. Entitlement to service connection for a left clavicle disability, currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, is granted. It is well established that every veteran will be presumed to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, the Veteran's April 1969 entrance examination noted bilateral collarbone fractures. Accordingly, it was noted that a bilateral collarbone condition existed prior to acceptance and enrollment for active military service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304. Therefore, the presumption of soundness does not apply in this case with regard to the Veteran's bilateral clavicles, or collarbones. 38 U.S.C. § 1111. Here, because a preexisting bilateral collarbone disability was noted upon entry into service, the Veteran's claim cannot be considered one for in-service incurrence of that disorder; but rather, must be analyzed based on aggravation of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Further, temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346 (Fed. Cir. 2002). Notably, it is the veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. In other words, the Veteran must submit, or the record must contain, some evidence demonstrating that the preexisting disability increased in severity during service for the presumption of aggravation to attach. Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 12330 (2003); 38 C.F.R. § 3.306(b). The Veteran's STRs show that he entered service with a pre-existing bilateral collarbone fracture. See April 1969 entrance examination (report of medical history). His STRs also contain additional complaints or treatment for his bilateral collarbones. Specifically, a September 1969 STR regarding his physical profile noted that he had prominent bilateral clavicles; it was noted that any straps should be worn more to the front of his shoulders; prior bilateral clavicle fractures were noted. Another September 1969 STR noted pain in both collarbones; it was noted that there may be non-union, and an X-ray was ordered. An undated STR noted bilateral broken clavicles and residual pain. An October 1969 STR noted a shoulder complaint, a prior bilateral clavicle fracture, and an X-ray showing deformity without healing; the official report was noted to be pending. Another October 1969 STR noted painful shoulders and no nonunion; aspirin was prescribed. Another October 1969 STR noted continuous bilateral shoulder pain. Another October 1969 STR noted that the bilateral shoulders were deformed. A November 1969 STR noted bilateral shoulder pain since an accident two years ago; full range of motion was also noted. The April 1971 exit examination noted the prior bilateral collarbone fracture as well as a bone deformity of prominent collarbones. The Veteran underwent a VA examination in May 2010, in which he was diagnosed with mild degenerative changes in the bilateral acromioclavicular and glenohumeral joints; an old fracture of the right distal clavicle with a minimal angulation deformity was also noted. The examiner opined that the Veteran's pre-existing shoulder condition was less likely as not permanently worsened during service in view of the separation exam and the present mild degenerative radiological findings of the acromioclavicular joint, which are likely age-related. See October 2010 VA medical opinion. The RO obtained another medical opinion in March 2019. The March 2019 medical opinion acknowledged the reports of pain in service due to the pre-existing condition but relied on the exit examination as not noting any shoulder pain. The examiner did not explain why the separation examination, and the lack of noted increasing shoulder pain or symptoms, conclusively established that no increase in severity had occurred. See March 2019 medical opinion. The November 2019 Board remand included a finding that, while the Veteran is considered sound with regard to his shoulders, he is not considered sound as to his bilateral clavicles. Thus, the RO was directed to obtain only opinions regarding direct and secondary service connection regarding the shoulders. However, regarding the bilateral collarbones, the Board directed the RO to obtain a medical opinion regarding whether the pre-existing bilateral collarbone disability was aggravated during service and, if so, whether there is clear and unmistakable evidence that the increase in disability during service was due to the normal progression of the disease. The examiner was also asked to specifically address an STR indicating that the Veteran was placed on a limited profile for his clavicles in 1969; the pain and clavicle symptomatology noted during service; and the present acromioclavicular degenerative changes. Following remand, the RO obtained a VA examination in December 2019 noting a diagnosis of acromioclavicular joint osteoarthritis and degenerative arthritis in the acromioclavicular joint. The RO also obtained a medical opinion in December 2019 that addressed aggravation of a pre-existing collarbone condition. The Board finds that this opinion, which was also opposed to service connection, is not adequate. The December 2019 medical opinion reiterated the same conclusion as the March 2019 medical opinion regarding the lack of noted aggravation of the pre-existing clavicle condition on the separation examination, without any further explanation. It also stated that "the pain experience[d] during service due to [the] preexisting clavicle condition was clearly and unmistakably the normal progression of the disease." However, no explanation for this conclusion was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA medical opinions of record fail to address the significance of multiple STRs noting shoulder/clavicle pain, which lasted through at least November 1969, and the suggestion that the military uniform or gear, specifically any straps, could affect the Veteran's conditionor why such evidence is outweighed by an exit examination, which noted the bilateral clavicle deformity but did not explicitly note any aggravation. Moreover, there is a suggestion in the STRs that the clavicle fracture had not properly healed, which was also unaddressed. Furthermore, no VA medical opinion addressed the relevant favorable medical evidence of record. The March 2017 VA examiner, in opining against direct service connection, stated that "the veteran had pre-existing bilateral clavicle fractures, which is more likely the contributing factor to his bilateral shoulder arthritis." No VA examiner addressed this piece of evidence suggesting progression of a pre-existing fracture into a current arthritic disability or offer an explanation as to why this would necessarily be due to the natural progression of the diseasebeyond a single conclusory statement in the December 2019 medical opinion. This further decreases the probative value of the VA medical opinions of record. After reviewing all of the evidence of record, and when affording the Veteran the benefit of the doubt, the Board finds that the probative evidence indicates that the Veteran's preexisting left clavicle underwent an increase in severity during service. The record shows that the Veteran continued to report pain through at least November 1969 for his bilateral clavicle/shoulder condition; his uniform or gear (specifically, the use of straps) was noted to possibly affect his condition; and his symptoms were severe enough that medication was prescribed. The STRs contain a suggestion that the collarbone fractures/deformity had possibly not completely healed; and the deformity continued to exist at the time of separation. Accordingly, the presumption of aggravation has attached and a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is warranted. Wagner, 370 F.3d at 1096. Here, the VA examiners opined that any increase in service is due to the natural progress of the disease. However, for the reasons set out above, these opinions are of little probative value. The March 2017 medical opinion indicates that there is a relationship between the pre-existing bilateral clavicle condition and the present shoulder arthritis; it does not address whether any progression in or following service was natural or not. Overall, the record does not contain clear and unmistakable evidence that the increase in the left clavicle/shoulder disability is due to the natural progress of the disease. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the that the Veteran's bilateral clavicle disability preexisted his active service and was aggravated therein, and the record does not show that there is clear and unmistakable evidence that the worsening is due to the natural progress of the disability. Accordingly, the Board must resolve reasonable doubt in the Veteran's favor and finds that service connection for a bilateral clavicle disability, currently diagnosed as acromioclavicular joint osteoarthritis and degenerative arthritis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.