Citation Nr: 21009974 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-17 454 DATE: February 23, 2021 ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to a right shoulder disability. 2. Entitlement to service connection for a respiratory disability, to include asthma. 3. Entitlement to a compensable disability rating for service-connected inversion injury, left ankle, currently rated as zero percent disabling. REMANDED Entitlement to service connection for a left shoulder disability, to include as secondary to a right shoulder disability is remanded. Entitlement to service connection for a respiratory disability, to include asthma is remanded. Entitlement to a compensable disability rating for service-connected inversion injury, left ankle, currently rated as zero percent disabling is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to September 1979, and from May 1980 to June 1999. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2020. A copy of the hearing transcript has been associated with the claims file. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). In light of the Veteran and his representative’s contentions, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. To establish service connection a Veteran must generally show: “(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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). We note that arthritis and bronchiectasis are chronic diseases and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as “chronic.” See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a left shoulder disability, to include as secondary to a right shoulder disability is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, the Service Treatment Records (STRs) include a Report of Medical History from July 1992. The Veteran endorsed painful or trick shoulder or elbow. The notes show that he suffered a possible left shoulder dislocation in 1981. Decades later, in March 2015, the Veteran was afforded a set of VA examinations with medical opinions. On page 36 of 63 is a VA Shoulder and Arm Disability Benefits Questionnaire (DBQ). The VA examiner identified a right shoulder strain and a left shoulder Glenohumeral joint osteoarthritis disability. Next, on page 58 of 63, the VA examiner rendered a negative nexus opinion for the left shoulder. The VA examiner reasoned that there is “insufficient evidence to suggest that the Veteran’s left shoulder condition incurred in or was caused by his complaint of possible left shoulder dislocation on [the] paint physical exam[ination] during military service.” Next, the Veteran filed a March 2016 Notice of Disagreement (NOD). Along with the NOD, the Veteran submitted excerpts from Service Treatment Records (STRs) and lay evidence. The lay evidence includes a VA 21-4138 Statement in Support of Claim. The Veteran wrote in part that his initial in service injury was to the left shoulder after slipping on hydraulic fluid in a hanger. This was followed by dislocation a few weeks later. He continued to have problems with the left shoulder since approximately 1981. They have been continuous through the present. His left shoulder will lock up which temporarily immobilizes him. The Veteran cited private treatment records from Dr. M. A separate letter from Dr. M. dated on March 11, 2015 shows that the Veteran has been under his care for bilateral shoulder disabilities. The disabilities include loss of function and limited range of motion. Ongoing private treatment records from Dr. R. T. M, M. D. show ongoing impressions of a left shoulder injury. The Veteran perfected his appeals in March 2017. For the left shoulder, he asserted that the repetitive injuries as referenced in the Statement of the Case (SOC) are the only injuries to which he can attribute his current left shoulder disability. Later, in March 2020, the Veteran submitted a pair of private medical opinions from R. V., FNP-C. R. V. described the Veteran’s history of a left shoulder injury in service. She ultimately rendered a positive nexus opinion for the left shoulder. R. V. documented his review of the Veteran’s medical history, although does not directly reference the results of a contemporaneous physical examination of the left shoulder. Recently, in September 2020, the Veteran testified before the undersigned VLJ. As a threshold matter, the Veteran and his representative clarified that his theory of entitlement is not as secondary to a right shoulder disability. Nonetheless, his representative acknowledged that the Veteran can go ahead and file a separate claim for a right shoulder disability at a later time. See September 2020 Hearing Transcript, p. 3. Regarding the current VA examinations with negative nexus opinions, the Veteran’s representative highlighted that the March 2015 VA examiner failed to provide an etiology of the claimed disabilities. Id. at p. 5. Regarding injuries in service, the Veteran recounted, “Well, I’ve had a couple slip and falls where, you know, on the hangar bay; but the first original damaging one was playing volleyball during PT, and it became completely dislocated where three of my friends had to hold me and kinda (sic) pop it back into socket.” Id. at p. 10. This was in the summer of 1981, though the Veteran testified that he did not seek treatment for his shoulder until around 2005. The Veteran’s representative highlighted an STR showing disability in service. “Yes, and I have subsequent documents after that that reflect, it’s called ‘Report of Medical History’ that says yes, noes, (sic) where I checked yes on painful or trick shoulder is checked yes, and that’s as of May of 1996.” Id. at p. 12. The Board observes that in a selection of STRs submitted by the Veteran on March 24, 2016, a Report of Medical History from July 1992 is of record. It shows that the Veteran endorsed painful or trick shoulder or elbow. Here, there are incomplete medical opinions, and new lay evidence of a positive nexus to events in service. First, the March 2015 VA examination does not fully address the Veteran’s theory of entitlement. As raised by the Veteran’s representative, it does not include a complete rational with etiology opinion. At the hearing, the Veteran clarified his theory is one of a left shoulder injury in service that has continued to this day. Second, there is lay evidence of a positive nexus by way of statements regarding injuries in service. Third, there is a positive medical opinion from R. V. The Board observes that since the rating decision on appeal, Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, and in light of the Veteran’s contentions, the Board finds that a remand for a supplemental VA examination with medical opinion is warranted. The entire claims file should be made available to the VA examiner for review. 2. Entitlement to service connection for a respiratory disability, to include asthma is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, the STRs show impressions of and treatment for various respiratory impairments. For example, an April 7, 1988 Chronological Record of Medical Care shows that the Veteran complained of severe coughing triggering his gag reflex. A related STR from April 7, 1988 shows an impression of LLL pneumonia. Another STR without a clear date shows the words “chest congestion.” For reference, it is stamped by D. M. and D. W. P. The Board notes that the Veteran later Veteran submitted a selection of these and post-service private treatment records, received by VA in March 2016. Years later, the Veteran was afforded a March 2015 VA respiratory conditions examination with Disability Benefits Questionnaire (DBQ). The VA examiner diagnosed asthma with a date of diagnosis of 2014. On page 34 of 63, the VA examiner rendered a negative nexus opinion for any diagnosed lung condition. The medical opinion is narrowly phrased in terms of any relationship between a current lung condition and frequent diagnosis and treatment for pneumonia and frequent chest colds in service. Next, in the March 2016 VA 21-4138 Statement in Support of Claim, the Veteran clarified his history of in-service disease. He reports that he was diagnosed with pneumonia in service and had repeated encounters with chest congestion. He also had wheezing and difficulty breathing documented in service. Also in March 2016, along with selected STRs, the Veteran submitted post-service treatment records showing impressions of and treatment for bronchiectasis, lung disability, and asthma. The following year, the March 2017 VA Form 9 shows that the Veteran requested that VA review the occupational hazards and exposure of an Aviation Structure Mechanic and the various chemicals he was exposed to over his 23 years of Naval Service. Next, in March 2020, the Veteran availed himself of a VA Respiratory Conditions Disability Benefits Questionnaire (DBQ). The private examiner, R. V., diagnosed asthma with a date of diagnosis of September 25, 2013. Also in March 2020, the Veteran submitted a private medical opinion from Dr. R. V. It contains a positive nexus opinion for asthma. The private examiner emphasized the Veteran’s exposure to hazardous chemicals, and their known effects on the respiratory system. Recently, in September 2020, the Veteran testified regarding his exposure in service and current respiratory disability. First, he described the types of chemicals to which he alleges he was exposed: Well, that’s a great question. There was a lot of, well, my job was as an aviation structural mechanic chief. One of my primary duties for the first 15 years was I was a certified aircraft painter. So, in painting aircraft, there’s as much into the preparation, which is sanding, treating, priming, and then actual paint combination. A lot of isocyanates I inhaled, a lot of methylethylketones, a thing they called MEK, polyurethane paint, epoxy paint, just a ton of different chemicals, you know. Between the PPE they would give you the protective gloves were so big and bulky, one of my responsibilities, huh? Second, he explained his specific responsibilities: Oh, yeah, exactly. One of my responsibilities when I was done I would have to break apart the paint gun and clean it. Part of the problem with that was you can’t use the gloves, so they have a thing called a fluid needle packing. It’s a small screen and a valve stem you have to with your fingers take apart and you would soak it in the, you know, the aliphatic naphtha or the MEK. Every day you feel your hangnails burning because all of that toxic stuff’s going into your hands. Again, being 19, 20, 21 years old and macho and bullet-proof, you didn’t worry about it. You just did it. But over time, I think my biggest concern was not the absorption of the chemicals, but was the inhalation of the chemicals because right now, my breathing is probably, out of all the pain issues, my breathing is my biggest concern. I have no doubt I’m going to be on an oxygen tank in the next two to three years tops. My lung capacity is shrunk down. I’m taking like half breaths as we speak. See September 2020 Hearing Transcript, p. 17. The Veteran explained that he only went to the sick bay over recurrent pneumonia and to get shots and physicals. He eventually sought treatment for asthma after separation, including trying albuterol, Advair, and something stronger. Id at p. 19. Here, there are incomplete medical opinions, and new lay evidence to be considered as part of a complete nexus opinion. First, the March 2015 VA examination is limited by its phrasing. It does not provide a complete rationale, and does not discuss the Veteran’s lay history of significant chemical exposure in service. Second, the March 2020 private DBQ with medical opinion is internally inconsistent with its own DBQ, showing a date of diagnosis of the disease entity in 2013 rather than an onset in service. Still, the background of chemical exposure and possible relationship to current respiratory impairment is informative. Since then, the Veteran has provided important lay testimony at the September 2020 Hearing. Indeed, “[a] medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board observes that in Miller v. Wilkie, 32 Vet. App. 249 (2020), the United States Court of Appeals for Veterans Claims (Court) held that when a VA examiner fails to address relevant lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. Therefore, and in light of the Veteran’s contentions, the Board finds that a remand for a supplemental VA examination with medical opinion is warranted. The entire claims file should be made available to the VA examiner for review. 3. Entitlement to a compensable disability rating for service-connected inversion injury, left ankle, currently rated as zero percent disabling is remanded. The Board incorporates its discussion from the sections above by reference. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board observes that the United States Court of Appeals for Veterans Claims (Court) has held that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). By way of background, the March 2015 rating decision shows that the current noncompensable evaluation was assigned due to a diagnosed disability with no compensable symptoms. This was based upon the findings of March 2015 VA examination showing no left ankle impairment or pain on motion. Next, in the March 2016 Notice of Disagreement (NOD), the Veteran asserts that he originally was awarded a 10 percent disability evaluation for his left ankle. He missed a VA examination in 2002 or 2003 for the ankle, which resulted in the reduction to a noncompensable evaluation. He continues to have pain in his ankle, does not have stability, and cannot do jumping jacks without pain. Later, in the March 2017 VA Form 9, the Veteran asserts that he has limited range of motion, with the most difficulty with extending the ankle. He has tight pressure in the ankle with extension, such as pushing a pedal. Recently, at the September 2020 Hearing, the Veteran testified regarding left ankle impairment. The Veteran described, “There’s a bulge that still sticks out. I have a numbness on the side, and I just don’t have the support or the full range that I had prior to the injury.” See September 2020 Hearing Transcript, p. 7. The Veteran’s representative summed this up as functional loss of motion. The Veteran explained that he can only stand five minutes without pain. He described the feeling as pain when climbing stairs and pushing off of the ankle. The feeling is a pressure and numbness. See September 2020 Hearing Transcript, p. 9. For this issue, while a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Veteran provided lay statements and testimony regarding left ankle impairment. Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran’s service-connected left ankle disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any left shoulder disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. Attention is invited to the Veteran’s lay history of left shoulder dislocation in 1981, as documented in the September 2020 Hearing Transcript. See pp. 10-12. The examiner should provide a rationale for all opinions expressed. 3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disability, to include asthma. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The VA examiner should comment on the Veteran’s reported exposure to chemicals as part of his duties as an Aviation Structural Mechanic, and any relationship between his reported exposure and a current respiratory disability. The examiner should provide a rationale for all opinions expressed. Attention is invited to the Veteran’s lay history of chemical exposures as part of his duties in service, as documented in the September 2020 Hearing Transcript. See p. 17. 4. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected inversion injury, left ankle disability. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range-of motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and non-weight bearing for the left ankle. If any, the extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the ankle disability alone and discuss the effect of the Veteran’s ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Attention is invited to lay evidence of left ankle impairment, as described in the September 2020 Hearing Transcript. See pp. 7-10. A complete rationale should be provided for all opinions expressed. (Continued on the next page.) 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.