Citation Nr: 21028668 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-14 485 DATE: May 11, 2021 ORDER Entitlement to service connection for a left shoulder disorder is denied. REMANDED Entitlement to service connection for residuals of prostate cancer, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer, is remanded. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran's current left shoulder disorder had its onset during or was otherwise etiologically related to active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1955 to July 1959 and from August 1959 to August 1978. He died in May 2020. The appellant is his surviving son, who has been substituted as the claimant. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. A brief review of the procedural history of these matters is instructive. In September 2017, the Board issued a decision, which, among other things, denied service connection for bilateral shoulder arthritis, residuals of prostate cancer, and erectile dysfunction secondary to residuals of prostate cancer. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Partial Remand in which the parties agreed that the Board erred by failing to ensure that the duty to assist was satisfied regarding the bilateral shoulder claims, and by failing to provide an adequate statement of reasons and bases for its negative credibility findings as to the Veteran's lay statements regarding exposure to herbicide agents. In January 2019, the Board again denied the claims of service connection for prostate cancer and erectile dysfunction, and remanded the claim of service connection for a bilateral shoulder disorder for further development. In June 2020, the claim for a bilateral shoulder disorder returned to the Board. At that time, the Board bifurcated the claim, and denied service connection for the right shoulder while remanding service connection for the left shoulder to obtain an addendum medical opinion. A few days after the Board's decision was issued, the Board received notice that the Veteran had died in May 2020. Later in June 2020, the Court issued a memorandum decision setting aside the Board's January 2019 decision as to the issues of service connection for prostate cancer and erectile dysfunction and remanding the matters for further development. It found that the Board, again, failed to provide an adequate statement of reasons and bases for its unfavorable credibility determinations and had not discussed whether VA had satisfied the duty to assist. In August 2020, the appellant was substituted as the claimant. He filed a motion to vacate the Board's June 2020 decision on the grounds that it did not have jurisdiction over the matters at that time, due to the death of the Veteran. In December 2020, the Board vacated the June 2020 decision, but continued the denial of service connection for the right shoulder and the remand of service connection for the left shoulder. The agency of original jurisdiction (AOJ) obtained a medical opinion for the left shoulder disorder in December 2020. Thereafter, the AOJ issued a Supplemental Statement of the Case and returned the matter to the Board. In January 2021, the claims of service connection for prostate cancer and erectile dysfunction were returned to the Board's docket. Thus, the claims of service connection for a left shoulder disorder, residuals of prostate cancer, and erectile dysfunction have been merged into the instant decision. The Board finds substantial compliance with the prior remand directives as to the claim of service connection for a left shoulder disorder, and the matter is ready for a decision on the merits. The remaining claims require further development and will be addressed on remand. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, listed at 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period (1 year, in the case of arthritis) after separation; or was noted in service with continuity of symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a left shoulder disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a left shoulder disorder, to include arthritis. Therefore, the appeal may not be granted. The record reflects a current diagnosis of left shoulder osteoarthritis of the glenohumeral and acromioclavicular joint. See C&P Exam, October 2019. The Veteran complained of left shoulder pain in his retirement report of medical history in May 1978. He checked the box "yes" for a history of "arthritis, rheumatism, or bursitis", but checked the box "no" for a history of "painful or 'trick shoulder' or elbow". He clarified that he was referring to "occasional discomfort" in the left shoulder occurring over the past five years, relieved with rest and not requiring treatment. However, the clinician did not document any active left shoulder disorder or list such a disorder in the summary of defects and diagnoses of the retirement physical examination. The Board further notes that a periodic examination in July 1977 found normal upper extremities and did not note any reports of occasional discomfort in the left shoulder. The question for the Board is whether there is an etiological nexus between the Veteran's reported left shoulder symptoms during military service and his current shoulder disorder. Private medical records show that the Veteran reported left arm pain in March 1997. He stated that his pain had started the previous week, and was radiating down from his neck, causing aching and weakness in the arm. Examination of the shoulders showed full range of motion, no pain in internal or external rotation, and no impingement signs. However, the Veteran's neck showed decreased flexion, extension, and lateral rotation on examination. The clinician listed an impression of neck and arm pain due to suspected cervical spine degenerative joint disease. Post-service medical records from a military hospital reveal that an examination of the Veteran's shoulders showed "no abnormalities" in June 2008. The Veteran reported right wrist and hip pain, but not any pain of the shoulders. The Veteran underwent a VA examination in March 2016. He denied having any current complaints due to the bilateral shoulders. The examiner performed X-ray testing, with findings including "no fracture or dislocation. Range of motion is normal. Left glenohumeral and acromioclavicular joint spaces are normal. Bone mineralization is normal. No osteophytes or erosions. No soft tissue lesion. Sternotomy wires." The impression listed was a "normal left shoulder." However, the examiner listed a diagnosis of chronic left shoulder strain. The AOJ obtained a medical opinion in December 2020. The examiner reviewed the claims file and opined that it was less likely than not that any current left shoulder disorder was related to military service. He observed that service medical records showed complaints of shoulder pain. However, he explained that medical records indicated that the pain was actually attributed to a cervical spine disorder. He noted that radiographs of the Veteran's left shoulder obtained in March 2016 documented a normal examination, including range of motion. The examiner reasoned that an injury incurred 38 years prior that had continued would be expected to provide a decrease in range of motion as well as evidence of arthritis. He noted that the March 2016 examiner had listed a "chronic left shoulder strain" despite normal examination and radiographs, but explained that it appeared to be a mis-diagnosis given only because of the pending claim of a bilateral shoulder condition. He observed that radiographic imaging obtained in October 2019 documented arthritic changes in the Veteran's left shoulder, but explained that these changes aligned with the natural result of the aging process. He stated that his personal review of radiographs did not indicate post traumatic arthritis dating to 40 years prior. Additionally, he found that there is a lack of documentation of continuation of a left shoulder condition noted over the decades. The Board has reviewed the Veteran's VA and other medical records. However, such records do not show evidence of a nexus between the Veteran's left shoulder disorder and military service. 38 C.F.R. § 3.303. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for a left shoulder disorder. In reaching this conclusion, the Board has reviewed the medical evidence. The December 2020 VA examiner opined that it is less likely than not that the current left shoulder disorder is related to military service. As he reviewed the claims file and rendered a persuasive medical opinion consistent with his professional expertise, the Board finds that his opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's lay testimony. However, to diagnose and relate left shoulder arthritis to military service requires complex diagnostic testing and medical knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, to the extent that the Veteran has asserted continuing symptoms of left shoulder pain since military service, the Board notes that he did not report left shoulder pain during the June 2008 evaluation, despite reporting other musculoskeletal symptoms, and his shoulders were found to have "no abnormalities". He also denied symptoms of a left shoulder disorder at the VA examination in 2016, and X-ray testing showed no abnormalities at that time. Caluza v. Brown, 7 Vet. App. 496, 511 (1995). Thus, the Board affords greater probative weight to the competent medical evidence. Additionally, the Board is aware that the Veteran was granted service connection for radiculopathy of the left upper extremity associated with degenerative joint disease of the cervical spine, and assigned a 20 percent rating effective June 10, 2008. See Rating Decision Codesheet, April 2020. The private evaluation in March 1997 found that the Veteran's symptoms of pain in the left upper extremity resulted from suspected cervical spine degenerative joint disease, and the December 2020 VA examiner also came to that conclusion. As such, the most probative medical evidence appears to attribute the Veteran's symptoms to left upper extremity radiculopathy as opposed to a separate left shoulder disorder. See 38 C.F.R. § 4.14 (forbidding "pyramiding" of disability ratings by stating that "the evaluation of the same disability under various diagnoses is to be avoided"). The Board has also considered whether service connection may be granted for arthritis under the chronic disease presumption at 38 C.F.R. § 3.309(a). However, the record does not reflect evidence sufficient to identify arthritis as a chronic disease entity within one year of military service to the extent that such a rating could be considered. 38 C.F.R. § 3.303(b). In sum, the Board has carefully and sympathetically reviewed the claim of entitlement to service connection for a left shoulder disorder. However, the most probative evidence does not reach the level of equipoise, and, thus, the claim may not be granted. 38 U.S.C. § 5107(a). REASONS FOR REMAND 2. Entitlement to service connection for residuals of prostate cancer, to include as secondary to exposure to herbicide agents, is remanded. The Board finds that further remand is necessary to attempt to obtain potentially relevant outstanding service personnel records that may support the Veteran's asserted exposure to herbicide agents. See 38 U.S.C. § 5103A(c)(1)(A). Initially, it appears to the Board that the Veteran's complete military personnel records are not associated with the claims file. The Veteran served in the military for more than two decades. However, the personnel records thus far associated with the claims file consist of approximately 12 pages of materials, including just one relevant performance evaluation. Additionally, the AOJ made several prior requests for information to verify any Vietnam service, but never requested the Veteran's complete personnel file. As the military personnel records may be directly relevant to the matters at issue, the Board finds that remand is necessary to acquire the Veteran's complete personnel file. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to residuals of prostate cancer, is remanded. The above claim is inextricably intertwined with the claim of service connection for residuals of prostate cancer, to include as due to exposure to herbicide agents. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain the Veteran's complete military personnel records, to specifically include all information relevant to performance evaluations, duty locations, and temporary duty assignments. All development associated with this directive must be documented in the claims file. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.