Citation Nr: 21021792 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-13 990A DATE: April 14, 2021 ORDER Entitlement to service connection for left lower extremity neuropathy is granted. Entitlement to service connection for right lower extremity neuropathy is granted. Reopening the claim for entitlement to service connection for left hip pain is denied. Reopening the claim for entitlement to service connection for left ankle pain is denied. Reopening the claim for entitlement to service connection for right shoulder pain is granted. Entitlement to service connection for right shoulder pain is denied. FINDINGS OF FACT 1. The Veteran’s left lower extremity neuropathy was caused by an in-service event, injury or disease. 2. The Veteran’s right lower extremity neuropathy was caused by an in-service event, injury or disease. 3. New and material evidence for a left hip disability has not been received which pertains to the grounds of the prior denial and raises a reasonable possibility of substantiating the claim. 4. New and material evidence for a left ankle disability has not been received which pertains to the grounds of the prior denial and raises a reasonable possibility of substantiating the claim. 5. New evidence showing a current right shoulder disability has been received which pertains to the grounds of the prior denial and raises a reasonable possibility of substantiating the claim. 6. There is no in-service event, injury, or disease, to which Veteran’s right shoulder disability may be related. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left lower extremity neuropathy are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to service connection for right lower extremity neuropathy are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.124a, Diagnostic Code 8520. 3. Reopening the claim for entitlement to service connection for left hip pain is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Reopening the claim for entitlement to service connection for left ankle pain is not warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. Reopening the claim for entitlement to service connection for a right shoulder condition is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for entitlement to service connection for right shoulder pain are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from September 1986 to September 1999 and the United States Army from April 1994 to November 1997. This March 2017 appeal comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Louisville, Kentucky. In the Veteran’s March 2017 appeal, he requested a Board hearing. The RO issued a May 2017 rating decision granting entitlement to service connection for bilateral lower extremity neuropathy. The Veteran was then afforded a Board hearing in July 2020 on the remaining issues on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, there must be competent 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 disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For chronic diseases manifestation during service or within 1-year post-service or a showing of continuity of symptomatology may serve to satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for left lower extremity neuropathy 2. Entitlement to service connection for right lower extremity neuropathy After the March 2017 appeal to the Board, the RO granted entitlement to service connection for bilateral lower extremity neuropathy in a May 2017 rating decision. Despite the later grant of service connection, the Board is nonetheless obligated to decide the earlier, pending claim. Warren v. McDonald, 28 Vet. App. 214 (2016). As the RO issued a rating decision granting service connection, the Board finds the criteria for service connection are met and the claim is granted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). 3. Reopening the claim of entitlement to service connection for left hip pain 4. Reopening the claim of entitlement to service connection for left ankle pain 5. Reopening the claim of entitlement to service connection for right shoulder pain In a September 2006 rating decision, the RO denied service connection for left hip pain and right shoulder pain and denied reopening the claim for left ankle pain. The Veteran was notified of the September 2006 rating decision and his procedural and appellate rights in September 2006 at his address of record. His representative was copied on the notice. The Veteran did not file a notice of disagreement within 1 year of the rating decision. For this reason, the September 2006 rating decision denial of service connection for left hip pain and right shoulder pain and denial of reopening the claim for left ankle pain became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. Evidence received since the prior final September 2006 rating decision includes August and November 2015 medical treatment records, an October 2016 buddy statement and July 2020 hearing testimony. The September 2006 denial was based in part that the Veteran did not have a current diagnosed left hip or left ankle condition. While the medical treatment records include complaints of left hip and left ankle pain, there is no diagnosis of a current left hip or left ankle disability. Further, there is no evidence that supports the Veteran’s current left hip or left ankle pain limits his functional ability. The Veteran testified that his hip pain worsened with increased walking and going up stairs. See July 2020 Hearing Transcript. He stated that he walked with a limp that started immediately after the hip injury in service. Id. The Veteran further testified that he injured his left ankle during a forced march in service, that he still has pain from that injury, and his ankle occasionally rolls on him depending on the surface he is walking on. Id. While his testimony supports he has pain in his left hip and left ankle, there is no evidence of a diagnosed left hip or left ankle condition or that the pain limits his functional ability. Therefore, although the Board finds the evidence is both new to the file and competent, it does not address the grounds of the prior final denial and does not raise a reasonable possibility of substantiating service connection for either the left hip or left ankle condition claim. The Board concludes that the criteria for reopening service connection are not met for the left hip and left ankle claims. 38 C.F.R. § 3.156(a). Evidence received since the prior final September 2006 rating decision includes a May 2007 shoulder MRI that indicates right shoulder AC joint degeneration and a November 2007 medical treatment record that indicates the Veteran may have a right shoulder impingement. See June 2008 Medical Treatment Record. In addition, a December 2011 VA examiner opined the Veteran has arthritis in his right shoulder. The September 2006 rating decision denial was based in part that the Veteran did not have a current diagnosed right shoulder condition. This medical evidence is new to the file, is competent, addresses the grounds of the prior final denial, and raises a reasonable possibility of substantiating the right shoulder service connection claim. The Board concludes that the criteria for reopening service connection are met for this issue. 38 C.F.R. § 3.156(a). 6. Entitlement to service connection for right shoulder pain The Veteran contends that his right shoulder pain is due to his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of right shoulder arthritis as evidenced by his private medical treatment records. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran was not diagnosed with arthritis until May 2007, approximately 10 years after his separation from service in 1997, and clearly outside of the applicable presumptive period. See June 2008 Medical Treatment Records.   Although the Veteran reported having pain in his right shoulder, and although he is competent to report having had experienced symptoms of pain that may be related to his arthritis since service, he would not be competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis as the Veteran did not demonstrate the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for arthritis may still be granted on a direct basis. The Board finds that while the Veteran has a diagnosis of right shoulder strain and right shoulder arthritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. In April of 1988, the Veteran reported right shoulder pain and weakness after completing pull-ups, however his x-rays were normal. See September 2010 STRs. The Veteran’s March 1994 enlistment examination for the Army indicated he was in good health and there was no indication of a right shoulder injury. See August 1997 Medical Treatment Records. In a July 1997 physical examination, the Veteran reported right shoulder soreness off and on, however there was no indication of trauma to the shoulder or diagnosis of a right shoulder condition. Id. During a May 2007 orthopedic examination, the physician noted the Veteran had increasing pain in his right shoulder. See June 2008 Medical Treatment Records. There was no injury to the shoulder and the physician noted he did not have a significance loss of motion. An MRI of his shoulder indicated AC degeneration and bursal inflammation causing some impingement. Id. During a December 2011 VA examination, the Veteran reported that he was injured after being struck by a truck and thrown to the ground. He stated his back and shoulder were affected but were not evaluated. The examiner opined the Veteran’s right shoulder condition was less likely than not due to his active service. The examiner noted the 1988 right shoulder strain in the Veteran’s STRs, however he reasoned that the muscle strain was an isolated incident, normally self-limiting and there was no evidence of a continuing right shoulder condition. Id. Further, the examiner stated it was difficult to determine range of motion measurements for the Veteran as any attempt to move his arms was met with resistance and complaints of back pain. The examiner did not feel the reported values was an adequate assessment of the either shoulder. Id. In further support of his claim, the Veteran submitted a buddy statement. In it, N.R. states the Veteran hurt his back in 1995 and it eventually caused other issues with his hip and shoulder. See October 2016 Buddy Statement. However, there’s no indication of the type of shoulder issue or date of onset of the condition. The Veteran testified in July 2020 that he did not remember injuring his right shoulder in service. See July 2020 Hearing Transcript. He stated that he carried a weapon during training and at times would sling it over his shoulder. On one such occasion he remembered feeling a sharp pain in his right shoulder and the pain has continued since that time. Id. The Veteran’s STRs note a right shoulder injury in 1988, however in a subsequent March 1994 examination there is no indication of a right shoulder injury. The December 2011 VA examiner opined that the Veteran’s right shoulder condition was not related to service. In support of his conclusion, he explained the Veteran’s right shoulder strain in service was an isolated incident and did not cause his current disability. While the Veteran believes that his right shoulder disability is related to his service, the evidence of record does not support his contentions. The Veteran’s testimony and medical treatment records, while supportive that he has a shoulder disability, fail to provide evidence that the condition is related to his service. The Board finds that the December 2011 VA examiner’s opinion is entitled to more probative value. The Board finds that the preponderance of the evidence shows the Veteran’s right shoulder condition, to include right shoulder strain and arthritis, was neither caused nor aggravated by an event, injury or illness during active service, nor etiologically related to service. The rationale of the December 2011 VA examination outweighs the Veteran’s contentions that his right shoulder condition is due to service. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against an in-service incurrence or aggravation of the disease or injury, and therefore, the claim. The doctrine is not applicable, and the claim for entitlement to service connection for a right shoulder condition must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.