Citation Nr: 21027352 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-38 724 DATE: May 5, 2021 ORDER Entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his left shoulder disability began during active service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Army from March 1980 to March 1984, and in the Air Force from November 1990 to April 1991, and from February 2003 to October 2006. He had additional periods of active duty service in the Air Force Reserve, including from January 5, 2009 to February 25, 2009. These matters come before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded these matters to the RO for additional development. The Board concludes that there has been substantial compliance with its remand directives only as to the left shoulder disability. Although regrettable, additional remand is required for the Veteran's left knee claim. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a left shoulder disability. The Veteran asserts that he injured his left shoulder while on active duty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). According to an October 2019 VA examination, the Veteran has a current diagnosis of left shoulder strain. As such, the first element of service connection is met. A January 2009 service treatment record includes a diagnosis of left shoulder strain. A February 2009 medical record documents complaints of left shoulder pain, along with diagnostic impressions and treatment recommendations. Military service records obtained on remand confirm that the Veteran was on a period of active duty at the time of this treatment. Accordingly, the Board finds that the Veteran experienced an injury to his left shoulder while on active duty and that the second element of service connection is met. Given the above findings, the question for the Board becomes whether the Veteran's current left shoulder disability is related to his in-service injury. On this question, the evidence of record includes lay statements from the Veteran regarding the onset of his pain and additional symptoms experienced since service. These statements indicate that "to this day" his shoulder causes him discomfort and numbness. The Board finds the Veteran's lay statements competent, credible, and probative. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay witnesses are competent to testify as to their observations). The Veteran's initial assertions regarding the location, date, and even trouble regarding his Tricare insurance at the time of the injury, are all consistent with contemporaneous medical treatment records and service personnel records. See August 2016 Form 9; June 2014 notice of disagreement (NOD). January and February 2009 service treatment records (STRs) show that the Veteran sought treatment for recurring complaints of left shoulder pain, which had continued for a month, causing sharp burning pain radiating down his arm, and numbness. These STRs show that he was assessed with a left shoulder strain and recommended to obtain further diagnostic testing. The Veteran's lay statements show that, because he did not want to miss his NCO program, he chose to use only ice packs and pain medication to manage his symptoms. See August 2016 Form 9. According to the October 2019 VA examination, the Veteran reported restricting himself from certain motions to prevent symptom aggravation and avoiding sleeping on his left side to avoid numbness. The October 2019 VA medical opinion includes a nexus opinion against the claim in which the examiner stated that the left shoulder strain did not occur on active duty. The examiner also considered the evidence to be "insufficient to demonstrate" that the shoulder condition continued after service. The Board finds this opinion inadequate and of no probative value. First, the examiner incorrectly stated that the injury did not occur during a period of active duty. Second, the examiner did not adequately address the Veteran's lay evidence that his symptoms continued since the original injury. Buchanan v. Nicholson, 451 F.3d 1331, 1336, (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence."). As noted above, the Veteran's lay statements regarding his shoulder pain are competent and credible, and the lack of medical evidence of shoulder pain post-service is not fatal to his service connection claim. See Buchanan, 451 F.3d at 1336. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current left shoulder strain arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a left shoulder disability began in service and continued since service. Thus, service connection for a left shoulder disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. Upon remand, a VA examination should be conducted to determine whether the Veteran has a left knee disability that is related to his active duty service. The Veteran contends that he has a left knee condition related to his active service. Specifically, he asserts that he injured his left knee 6 weeks prior to his discharge from the Army. He stated that he did not report it to anyone and did not seek medical treatment at the time. See August 2016 Form 9. VA treatment records reveal that the Veteran complained of "worsening and progressive bilateral knee pain" since early 2010 and complained of a popping sensation with clicking. These records note existence of diagnostic testing, which "showed worn cartilages, torn meniscus, with bone on bone." While the Veteran received a knee and lower leg VA examination in March 2014, these VA treatment records were not available for review or consideration by the VA examiner. Additionally, the VA examiner did not discuss a service medical record relating to evidence of popping of the left knee. See January 2000 report of medical history. As such, the medical evidence of record is inadequate to accurately adjudicate the left knee claim and a new examination is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to assess the nature and etiology of any left knee condition found to be present. A complete copy of the Veteran's claims file and of this remand should be provided to the examiner for review. 2. During the examination, the examiner shall take a history from the Veteran regarding his claimed condition and must consider all reports of observable symptomatology. After a thorough review of the record, physical examination, and completion of any indicated diagnostic testing, the examiner shall address the following: (a.) Identify all current diagnoses pertaining to the Veteran's left knee. If there is no diagnosis associated with the Veteran's left knee, the examiner should address whether the Veteran's reports of left knee pain cause functional impairment. (b.) For each identified diagnosis or impairment, is it at least as likely as not (i.e. a probability of 50 percent or more) that the condition had its onset during active service, within one year of separation from service, or otherwise resulted from active military service? The examiner should provide a complete rationale for all opinions. The examiner is encouraged to identify which facts and information support the opinions and explain how that evidence justifies the medical opinions. 3. Following completion of the above, if the claim remains denied, the AOJ should issue an appropriate supplemental Statement of the Case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.