Citation Nr: 21075668 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-21 711 DATE: December 21, 2021 ORDER Service connection for a right shoulder disability other than congenital absence of the bilateral pectoralis major muscles with recurrent dislocations is granted. Service connection for a left shoulder disability other than congenital absence of the bilateral pectoralis major muscles with recurrent dislocations is granted. REMANDED Service connection for congenital absence of the right pectoralis major muscles with recurrent dislocations is remanded. Service connection for congenital absence of the left pectoralis major muscles with recurrent dislocations is remanded. FINDINGS OF FACT 1. The Veteran's right shoulder disability had its onset in service. 2. The Veteran's left shoulder disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder other than congenital absence of the bilateral pectoralis major muscles with recurrent dislocations have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left shoulder disorder other than congenital absence of the bilateral pectoralis major muscles with recurrent dislocations have been met. 38 U.S.C. §§ 1110, 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 January 1976 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). When this matter was initially before the Board in March 2014, the Board reopened the Veteran's previously denied claims of service connection for right shoulder and left shoulder disability and remanded the appeal for further development. This was followed by Board remands in March 2015, October 2015, September 2017 and June 2018. When this matter was before the Board in November 2020, the Board denied service connection for a bilateral shoulder condition and service connection for a congenital absence of the bilateral pectoralis major muscles with recurrent dislocations. The Veteran appealed the Board's November 2020 decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2021 order, granted the parties' joint motions for remand (JMR), vacating the Board's November 2020 decision and remanding the claim for compliance with the terms of the JMR. 1. Service connection for a right shoulder disorder other than congenital absence of the bilateral pectoralis major muscles with recurrent dislocations. 2. Service connection for a left shoulder disorder other than congenital absence of the bilateral pectoralis major muscles with recurrent dislocations. In the July 2021 joint motion for remand, the parties determined that the Board's statement of reasons or bases was inadequate. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran contends that he has a bilateral shoulder disability other than congenital absence of the bilateral pectoralis major muscles with recurrent dislocations that is related to his military service. Specifically, he asserts that his enlistment physical examination does not list any problems with his shoulders and that his bilateral shoulder problems started during active duty and have progressively worsened over the years. See VA Form 9, July 2013. As a preliminary matter, the Board finds that the Veteran has a current diagnosis of several bilateral shoulder disabilities, including shoulder adhesive capsulitis and instability, mild degenerative changes in the bilateral acromioclavicular joint, degenerative changes in the bilateral glenoid, mild partial thickness articular surface tear of the right shoulder supraspinatus tendon, a cyst associated with labral tear in the right shoulder, and minimal subacromial/subdeltoid bursitis in the right shoulder. See Medical Treatment Records, November 2012 and April 2013. The Veteran's enlistment examination from October 1975 is silent for a shoulder condition. In fact, the upper extremities were evaluated as normal. As such, because the Veteran's right shoulder and left shoulder conditions were not noted on his examination at entrance into service, he must be presumed sound with respect to these disabilities. In this regard, every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. In February 1976, he ought treatment for "looseness of both shoulders ever since he could remember." He reported that his shoulders dislocated during physical training, but x-rays did not show subluxation and the examiner diagnosed him with probable congenital absence of pectoralis major muscle bilaterally. He sought treatment a week later for bilateral shoulder pain, and an examination showed full range of motion without crepitus and no edema. He was seen again a week later for current dislocation, after which Medical Board action was recommended. The Medical Board report notes that the Veteran remembered injuring his left shoulder at age seven and experiencing voluntary and involuntary dislocation of both shoulders, thereafter, including while lifting heavy objects at age 14. While at Parris Island, pull-ups, bends and thrusts, obstacle courses, and any action requiring lifting with stress on the arms, all caused recurrence of the dislocation. The report also states that the Veteran had not given a history of shoulder problems at entrance. A physical examination revealed partial absence of the pectoralis major bilaterally and with similar manipulation, either shoulder could be voluntarily dislocated. The examiner determined that the Veteran's condition interfered with functions to such a degree that he could not satisfactorily complete his prescribed training exercises and recommended separation from service. The Medical Board report cover sheet reflects a diagnosis of "congenital absence, pectoralis major bilateral, with recurrent dislocations of both shoulders, and noted that the condition existed prior to entry. The report indicates discharge by reasons of enlistment error and the Veteran signed a statement in March 1976 that he understood he was being "discharged by reason of enlisted in error, i.e., failure to meet enlistment physical standards." The Veteran filed his initial claim of service connection for right shoulder and left shoulder disability in January 1977, which was denied by the RO in a February 1977 rating decision. In the February 1977 rating decision, the RO noted that the Veteran's service records recorded a history of bilateral dislocation of the shoulders on numerous occasions prior to service, both voluntary and involuntary. The RO added that physical examination showed a partial absence of the pectoralis majors, bilateral. The RO added that the Veteran, with simple manipulation could voluntarily dislocate either shoulder and that the diagnosis was congential absence pectoralis major bilateral with recurrent dislocations both shoulders held as existing prior to service. In denying service connection, the RO concluded that the Veteran's right shoulder and left shoulder disability "clearly pre-existed service and an increase in severity beyond that attributable to natural progress is not demonstrated." The Veteran's post-service treatment records are associated with the claims file, dating to 2008. In a November 2012 private visit, he reported that he has experienced bilateral shoulder instability with recurrent dislocations for the past 30 years. He also reported recurrent episodes of subluxation but did not report when the episodes began. X-rays were conducted, and he was diagnosed with bilateral shoulder adhesive capsulitis and instability. He underwent an MRI of both shoulders in April 2013, which revealed mild degenerative changes in the bilateral acromioclavicular joint, degenerative changes in the bilateral glenoid, mild partial thickness articular surface tear of the right shoulder supraspinatus tendon, a cyst associated with labral tear in the right shoulder, and minimal subacromial/subdeltoid bursitis in the right shoulder. Medical records associated with the Veteran's Social Security Administration disability claim are also in the claims file. When he initially filed his claim in January 2012, he did not report any shoulder conditions. He updated his claim in August 2012 to include bilateral shoulder dislocations. He underwent a psychological evaluation in June 2012 for his claim, during which he reported several major illnesses, injuries, and conditions, including his absence of pectoral muscles. In June 2015, a medical examiner opined that the Veteran's condition was a congenital disease rather than defect because it was capable of improvement or deterioration. She pointed to the Veteran's other shoulder conditions as evidence that his congenital condition was capable of worsening and therefore a disease, not a defect. The examiner stated that the evidence did not relate the Veteran's other shoulder conditions to the congenital conditions as the current condition onset 35 years after service and the other shoulder conditions are incapable of being anatomically or physiologically caused by the absence of pectoralis muscles. Per the June 2018 remand, a VA examination and medical opinions were obtained in July 2019. In the July 2019 VA medical opinion, the examiner opined that the Veteran's glenohumeral joint osteoarthritis, acromioclavicular joint arthritis, and capsulitis were at least as likely as not related to service. He wrote that the Veteran's in-service physical training at least as likely as not aggravated his shoulders which has progressed to the current bilateral shoulder conditions. Service connection may be granted for congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies if a veteran's congenital disease is not noted at entry. See Quirin, 22 Vet. App. at 396-97, Monroe, 4 Vet. App. at 515. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly, [o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See id. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. In this case, as noted above, the Veteran's bilateral shoulder disability was not noted upon entry into service. Accordingly, the Board finds that the presumption of soundness applies. Therefore, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). If this burden is met, then the Veteran is not entitled to service-connected benefits. If the government fails to rebut the presumption of soundness, however, the Veteran's claim is one for direct service connection. The Board acknowledges the VA opinions of record determining that the Veteran's bilateral shoulder disability was pre-existing. However, the Board notes that the examiner's opinions do not amount to clear and unmistakable evidence that the Veteran's bilateral shoulder disability preexisted and was not aggravated during service, particularly in light of the Veteran's normal enlistment examination coupled with the other medical evidence of record, and his competent, credible lay statements that his bilateral shoulder condition began in service. Therefore, the presumption of soundness has not been rebutted. The Board finds that service connection is warranted. The Veteran has a current bilateral shoulder diagnosis that was not noted on the enlistment examination. The Medical Board evaluation diagnosed the Veteran with congenital absence congenital absence of the bilateral pectoralis major muscles with recurrent dislocations. Further, the Veteran has consistently maintained that his shoulder disabilities occurred in service. See Statement in Support of Claim, August 2012 and October 2012; Correspondence, September 2012; March 2016; Notice of Disagreement, February 2013; VA Form 9, July 2013; see also Wife Statement, January 2013 (corroborating the Veteran's statements). Moreover, the Veteran complained of right shoulder and left shoulder problems in service and received treatment for this condition. Accordingly, based on the lay and medical evidence of record, the Board finds that there is not clear and unmistakable evidence showing that the Veteran's bilateral shoulder disability both pre-existed and was not aggravated by service. Thus, because the Veteran was normal at service entrance with respect to his shoulders, and since the evidence does not clearly and unmistakably show that his bilateral shoulder disability both existed prior to service and were not aggravated by service, (and he currently suffers from a bilateral shoulder disability, diagnosed as bilateral shoulder adhesive capsulitis and instability, mild degenerative changes in the bilateral acromioclavicular joint, degenerative changes in the bilateral glenoid), the criteria for service connection have been met. Indeed, in initially denying this claim in February 1977, VA acknowledged that the Veteran's right shoulder and left shoulder disabilities worsened in service but determined that the increase in severity was attributable to the natural progress of the condition. See February 1977 Rating Decision. As such, service connection for a bilateral shoulder disability is warranted. See 38 U.S.C. § 3.303. REASONS FOR REMAND 1. Service connection for congenital absence of the right pectoralis major muscles with recurrent dislocations is remanded. 2. Service connection for congenital absence of the left pectoralis major muscles with recurrent dislocations is remanded. In the July 2021 joint motion for remand, the parties determined that the Board failed to provide adequate reasons and bases for finding that congenital absence of the bilateral pectoralis muscles with recurrent dislocations of the shoulder was a congenital defect. Further, the Veteran, through his representative asserts that the record demonstrates that the bilateral pectoral muscle absence and the recurrent dislocations are separate conditions; one is secondary to the other, but the bilateral pectoral muscle absence is not capable of deterioration, whereas the recurrent dislocations are. The Veteran cited the July 2019 and July 2020 examination opinions in support of his contention. Thus, the Board must remand this matter for compliance with the Court's July 2021 order granting the parties' joint motion to remand and obtain a new examination opinion addressing the above contentions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled.). The matters are REMANDED for the following action: Afford the Veteran a VA examination to determine the nature, onset, and etiology of any congenital absence of the right and left pectoralis major muscles with recurrent dislocations. It is left to the examiner's discretion whether to schedule the Veteran for an in-person examination (or telehealth interview, records review, etc., if an in-person examination is not feasible) for the above listed disabilities. (a) The examiner should state the likelihood that any congenital absence of the right and left pectoralis major muscles found to be present existed prior to service (b) If the examiner concludes that a congenital absence of the right and left pectoralis major muscles existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. (c) The examiner must discuss whether recurrent dislocations of the bilateral shoulder is a separate and/or secondary disability from the bilateral pectoral muscle absence. (d) The examiner must opine as to whether any congenital absence of the right and left pectoralis major muscles was caused or aggravated by the Veteran's now service-connected right shoulder and left shoulder disabilities. (e) If the examiner diagnoses the Veteran as having a right and/or left pectoralis major muscles disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. (Continued on the next page) (f) In offering these opinions, the examiner must acknowledge and discuss the competent lay evidence of recurrent problems since service. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.