Citation Nr: 21013774 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-23 125 DATE: March 10, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a left elbow condition is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for a left elbow condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. FINDINGS OF FACT 1. A March 1974 rating decision denied entitlement to service connection for a left elbow condition. Notice of that rating decision was provided to the Veteran in May 1974, and the Veteran did not perfect an appeal of the March 1974 rating decision or submit new and material evidence within one year of notification of that decision. 2. Evidence received since the March 1974 rating decision is new and material to the claim for entitlement to service connection for a left elbow condition. CONCLUSIONS OF LAW 1. The March 1974 rating decision is final with respect to the Veteran’s claim for entitlement to service connection for a left elbow condition. 28 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the March 1974 rating decision is new and material, and the claim for entitlement to service connection for a left elbow condition is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from February 1973 to December 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2014 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) of the Board in November 2018. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. However, the VLJ who conducted the November 2018 Board hearing is no longer employed by the Board. In December 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the November 2018 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The Veteran responded by indicating that he did not desire another Board hearing, and wanted the Board to consider the case on the evidence of record. In March 2019, the Board found that new and material evidence had not been received to reopen the previously denied claim of service connection for a left elbow condition, and it denied the Veteran’s claims for entitlement to service connection for a right shoulder condition and a left shoulder condition. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, pursuant to a June 2020 Joint Motion for Remand (JMR), the Court vacated the March 2019 Board decision that found that new and material evidence had not been received to reopen the previously denied claim of service connection for a left elbow condition, and denied entitlement to service connection for a right shoulder condition and a left shoulder condition. The Court also remanded the claims for action consistent with the terms of the parties’ JMR. The case has since been returned to the Board for appellate review. The Board has considered the Veteran’s claims and decided entitlement based on the evidence of record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As an initial matter, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a left elbow condition. By way of background, a March 1974 rating decision denied entitlement to service connection for left elbow condition based on a finding that there was no evidence that the Veteran’s preexisting left elbow disability was aggravated by service. Notice of that rating decision was provided to the Veteran in May 1974 and the Veteran did not perfect an appeal thereof. Since the March 1974 rating decision, new and material evidence has been submitted including the Veteran’s lay statements that his preexisting left elbow disability was aggravated by service and had continued to deteriorate since service. See Correspondence, received December 2018; Hearing Transcript, received November 2018. The Board finds that this evidence is sufficient to reopen the claim. REASONS FOR REMAND 1. Entitlement to service connection for a left elbow condition is remanded. The Veteran contends that his preexisting left elbow condition was aggravated by service. The Veteran’s service treatment records show that a left elbow injury was noted on his February 1973 entrance examination. Upon examination, the service examiner noted normal musculature and range of motion from 130 degrees to 20 degrees. X-ray findings revealed fragmentation of the left medial epicondyle. A March 1973 medical record notes that the Veteran could not straighten his left arm. Another note from March 1973 listed that the Veteran had extension in his left elbow to 35 degrees. In a September 1973 evaluation for continued active service, upon physical examination of the left elbow, the examiner noted a range of motion of approximately 145 to 30 degrees flexion and extension and further noted that the ulnar nerve was tender to palpitation and produced paresthesias in the upper portion of the arm. The examiner stated that the Veteran’s problems with his elbow were aggravated by push-ups and exercises during basic training, and that he continued to have difficulty with his left elbow after basic training. A November 1973 Medical Board Report shows that the Medical Board recommended that the Veteran be discharged from service by reason of physical disability which existed prior to service and had not been permanently aggravated thereby after reviewing the Veteran’s medical records and physical examinations for his status-post fracture and dislocation of the left elbow and cubitus valgus. The Veteran’s February 1973 entrance examination noted that the Veteran had injured his left elbow in 1969, but had no present complaints. The Veteran’s left elbow injury was found not to be disqualifying for enlistment. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Since a preexisting disability was noted on enlistment, the burden is on the appellant to show that the disability was aggravated by service. See Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The Board observes that although the Medical Board Report found that the Veteran’s left elbow condition was not “permanently aggravated” by service, the September 1973 evaluation for continued active service found that the Veteran’s preexisting left elbow condition was aggravated by physical exercises during basic training and that the Veteran continued to have problems with his left elbow after basic training. The September 1973 evaluation for continued active service findings indicates that the aggravation to the Veteran’s left elbow during basic training may have been more than a temporary aggravation. The Veteran has not yet been afforded a VA examination in connection with his claim. The Board finds that there is evidence to demonstrate that the Veteran’s preexisting left elbow disability may have been aggravated by service. As the Veteran has not yet been afforded a VA examination to determine whether his left elbow disability was aggravated by service, a VA examination is warranted. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a right shoulder condition is remanded. 3. Entitlement to service connection for a left shoulder condition is remanded. The Veteran contends that his right shoulder and left shoulder disabilities are causally related to his left elbow disability. Adjudication of the issue of entitlement to service connection for a left elbow disability may impact adjudication of the issues of entitlement to service connection for a bilateral shoulder disability. Consequently, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the claims for entitlement to service connection for a right shoulder disability and a left shoulder disability must be remanded. Moreover, the Board finds that additional development is needed prior to adjudication of the issues on appeal. There is insufficient evidence for the Board to render a determination on the Veteran’s claims, as he has not been afforded a VA examination for his right shoulder and left shoulder disabilities. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record, 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the evidence “indicates” that the “may” be a nexus between the current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. As such, based on the record before the Board, a remand for VA examination is necessary to determine the nature and etiology of the Veteran’s right and left shoulder disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran with an appropriate clinician to determine the nature and etiology of his right shoulder and left shoulder disabilities, as well as whether his preexisting left elbow disability was aggravated by service. The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. All indicated tests and studies should be performed and all clinical findings should be reported in detail. The examiner is then asked to opine on the following: (a.) Did the Veteran’s preexisting left elbow disability undergo a worsening during the Veteran’s service? Please explain why or why not, to include addressing the significance, if any, of the Veteran’s lay statements and his service treatment records showing complaints of pain and limitation of motion in March 1973 and September 1973, the September 1973 evaluation for continued active service that found that the Veteran’s preexisting left elbow injury was aggravated during basic training and that he continued to have problems with his left elbow after basic training, and the November 1973 Medical Board Report which found that the Veteran’s preexisting left elbow disability was not “permanently aggravated” by service. (b.) If the examiner concludes that the Veteran’s preexisting left elbow disability was worsened, the examiner should explain whether the worsening was undebatably the result of natural progression rather the result of activities and/or incidents of active service. Please explain why or why not, to include addressing the significance, if any, of the Veteran’s lay statements and his service treatment records showing complaints of pain and limitation of motion in March 1973 and September 1973, the September 1973 evaluation for continued active service that found that the Veteran’s preexisting left elbow injury was aggravated during basic training and that he continued to have problems with his left elbow after basic training, and the November 1973 Medical Board Report which found that the Veteran’s preexisting left elbow disability was not “permanently aggravated” by service. (c.) If the examiner concludes that the Veteran’s preexisting left elbow disability was worsened beyond natural progression (aggravated) during service, please opine whether any current left elbow disability is at least as likely as not (50 percent probability or greater) related to that in-service aggravation? Please explain why or why not, to include addressing the significance, if any, of the Veteran’s lay statements and his service treatment records showing complaints of pain and limitation of motion in March 1973 and September 1973, the September 1973 evaluation for continued active service that found that the Veteran’s preexisting left elbow injury was aggravated during basic training and that he continued to have problems with his left elbow after basic training, and the November 1973 Medical Board Report which found that the Veteran’s preexisting left elbow disability was not “permanently aggravated” by service. (d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right shoulder condition had its onset during or is otherwise etiologically related to military service? (e.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s right shoulder condition is proximately due to, a result of, or aggravated beyond its natural progression by the Veteran’s left elbow disability? (f.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left shoulder condition had its onset during or is otherwise etiologically related to military service? (g.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s left shoulder condition is proximately due to, a result of, or aggravated beyond its natural progression by the Veteran’s left elbow disability? Aggravation in this context is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a claimed disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 2. Thereafter, readjudicate the issues on appeal, undertaking any additional development deemed necessary. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case. After allowing an appropriate period for response, return the appeal to the Board for review. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.