Citation Nr: 21009623 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 11-07 213 DATE: February 23, 2021 ORDER Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. Service connection for nausea is denied. REMANDED Service connection for a left hip and pelvic disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a left shoulder disability manifested by functional impairment. 2. The Veteran’s right shoulder disability manifested by functional impairment is not related to service. 3. The Veteran does not have a nausea disability manifested by functional impairment. CONCLUSIONS OF LAW 1. The criteria for service connection of a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection of a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection of a nausea disability are not met. 38 U.S.C. §§ 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 March 1994 to December 1997. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2015. In April 2015 and February 2019, the Board remanded this case for additional development. Service Connection The Veteran seeks service connection for a bilateral shoulder, left hip and pelvic, and nausea disability. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 U.S.C. §3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) 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. See 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). In February 2019, the Board remanded this claim for additional development, including VA examinations for her bilateral shoulder and nausea disability. The RO scheduled the requested exams. In September 2020, the Veteran cancelled these exams. She has neither provided a reason for the cancellation of the VA examination nor expressed a desire to have these exams rescheduled. As such, the Board will decide these claims based on the evidence off record. See 38 C.F.R. § 3.655. Left Shoulder The Board finds service connection for a left shoulder disability is not warranted. During the pendency of this appeal, the Veteran did not have a diagnosable left shoulder disability. Prior to initiating appeal, a private treatment record indicates that she had a rotator cuff condition. See January 2004 private treatment records. However, the evidence of record does not show a diagnosed disability during this appeal. Notably, the November 2015 VA examiner opined that the Veteran does not have a left shoulder disability. In reaching this conclusion, the Board has also considered whether the recent ruling in. Saunders v. Wilkie is applicable. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Although the Veteran reports experiencing pain in her left shoulder, the evidence does not show that she has pain and functional impairment. The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it” ‘to function under the ordinary conditions of daily life including employment.’” Id. at 1363 (quoting 38 C.F.R. § 4.10). Here, the evidence does not establish that the Veteran has a disability pursuant to Saunders. Although she reports subjective pain, discomfort, muscle spasms, and tenderness, there is no record of functional impairment impacting her ability to function under ordinary conditions of daily life. See April 2017 correspondence; November 2015 VA examination. Because the Veteran does not have a current diagnosis of a left shoulder disability, service connection must be denied. Right Shoulder The Veteran has degenerative joint disease of her right shoulder. See November 2015 VA examination. At the January 2015 Board hearing, she explained that her right shoulder did not hurt in service. However, over the years dealing with pain in her left shoulder has caused or affected her right shoulder. See January 2015 Hr’g Tr. Secondary service connection exists where there is: (1): a current disability that is not already service connected and (2) evidence that a non-service-connected disability is either proximately due to or the result of or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). service connection is not in effect for a left shoulder disability. As a result, secondary service connection cannot be granted. Further, the Veteran has not asserted that her right shoulder disability is related to service. Notably, service treatment records show that at her exit examination, she specifically denied having a painful or tricked shoulder or elbow. Treatment records also show she was not diagnosed with degenerative joint disease within one year after service. Thus, service connection for a right shoulder disability must be denied. Nausea The Board finds service connection for nausea is not warranted. With respect to the nausea, the examiner also concluded that the Veteran’s nausea symptoms are not a diagnosable disability, but rather a symptom of her cervical spine disability. See November 2015 VA examination. The Board remanded this claim in February 2019 to determine: the etiology and the existence of any nausea related disability. As noted above, the Veteran cancelled her VA examinations without providing a reason. As a result, the Board must look at the evidence of record and make a determination. The record does not show that the Veteran has a nausea disability. Although she experiences nausea, the VA examiner opined that she did not have a diagnosable disability. In reaching this conclusion, the Board has considered the applicability of Saunders. However, the evidence does not show that the Veteran has any functional limitations related to her nausea. As a result, service connection is denied. REASONS FOR REMAND The Board notes the Veteran cancelled examinations following the Board’s February 2019 decision. Still, remand is appropriate for the left hip and pelvic claims. This is because in its February 2019 decision, the Board remanded this claim for a medical opinion, which could be obtained despite the Veteran’s cancellation of her examinations. As noted in the prior decision, a remand is necessary to obtain pertinent outstanding treatment records and a medical opinion that addresses the likely etiology of the Veteran’s left hip and pelvic disability. The November 2015 VA examiner found that the Veteran’s left hip and pelvic condition, coxa profunda with borderline protrusion, was a congenital or developmental defect. Generally, congenital and developmental defects are not “diseases or injuries” in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2017). It follows, therefore, that 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). Here, the Veteran’s congenital condition was not noted on entry. See October 1993service treatment records. The Veteran reports that in service she does not recall having pain in her left hip, but there were issues with misalignment. See January 2015 Board hearing; April 2017 correspondence. Her medical evaluation board proceedings (MEBP) show a diagnosis of bilateral patellofemoral pain syndrome and the Veteran asserts that her current hip pain may be caused by her in-service accident or by her service-connected lumbar or cervical spine disabilities. As her lay statements may provide evidence of worsening while in service, it is necessary for the VA examiner to consider whether her congenital condition is a defect, static and immutable, or whether it is a disease, capable of worsening. See Quirin, 22 Vet. App. at 394-45. A Court remand confers on a claimant as a matter of law, the right to compliance with the remand orders. Fossie v. W., 12 Vet. App. 234 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Thus, remand is warranted for this opinion. The matters are remanded for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain a medical opinion addressing the nature, onset, and etiology of the Veteran’s left hip/pelvic disability. (a) For each condition identified, provide an opinion addressing whether it is capable of improving or deteriorating, or rather whether it is static and immutable. If it is determined that a diagnosed condition is static and immutable, provide an opinion as to whether there was a superimposed disease or injury in service. In issuing this opinion, the examiner should consider that the Veteran did not have any identified left hip/pelvic disabilities at entry. The examiner should also consider the Veteran’s lay statements of record, including her assertions that she had misalignment issues in service. (b) The examiner should opine whether it is least as likely as not that any identified condition had its onset in service, is related to service, or is caused or aggravated by any service-connected disability, to include her lumbar or cervical spine disabilities STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.Ijitimehin, 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.