Citation Nr: 21032633 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-27 925 DATE: May 27, 2021 ORDER Entitlement to service connection for residuals of a right bicep tear/injury, to include pain and weakness, is granted. FINDING OF FACT Resolving all doubt, the Veteran's residuals of a right bicep tear/injury, to include pain and weakness, began during active service. CONCLUSION OF LAW Resolving all doubt, the criteria for service connection for residuals of a right bicep tear/injury, to include pain and weakness, 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 served honorably in the United States Navy, as a Navy SEAL, to include the periods from May 2005 to October 2012, January 2016 to December 2016, January 2017 to February 2018, and September 2018 to May 2019. His decorations and awards include the Bronze Star with Combat "V" device, the Navy Achievement Medal with Combat "V" device, the Combat Action Ribbon, the Iraq Campaign Medal, and the Afghanistan Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. In May 2020, the Veteran revoked representation by Disabled American Veterans. See 38 C.F.R. § 14.631(f)(1). He remains unrepresented. Entitlement to service connection for residuals of a right bicep tear/injury, to include pain and weakness, is granted. The Veteran contends that his right bicep pain began during service when he suffered a right bicep tear and/or strain in February 2006 while participating in Basic Underwater Demolition/SEAL (BUD/S) training. He further contends that he has experienced ongoing issues with right bicep pain and weakness ever since, which has limited his daily life. See June 2014 Notice of Disagreement. 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 (2004). The Board observes that the United States Court of Appeals for the Federal Circuit has held that for the "current disability" element of service connection, "pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (2018). Rather, "[t]o establish the presence of a disability, a veteran will need to show that [their] pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. This definition of "disability" does not "require that pain must affect some aspect of the normal working movements of the body" or that "pain must be tied to physical evidence of a lack of functionality and/or physical evidence of a current disease or injury." Id. at 1366-67. The Veteran's service treatment records show that the Veteran experienced a right bicep strain with pain in February 2006, which initially appeared to have resolved in March 2006. April 2006 service treatment records show that the Veteran reinjured his right bicep while training in a pool. Service treatment records from September 2012 refer to complaints of pain associated with the Veteran's right shoulder and bicipital tendon. During his initial VA general medical examination in December 2012, the Veteran reported that, following his February 2006 right bicep injury, he continued to experience pain two to three times per year of approximately one week in duration, with pain lifting items, and no other limitations. The examiner noted that the Veteran's injury did not impact his ability to work at this time. A February 2013 deferred rating decision requested further clarification as to whether the Veteran had a current chronic medical diagnosis. On VA examination in March 2013, the examiner opined that the right bicep injury had resolved. On a private orthopedic evaluation in June 2014, however, the Veteran's private physician provided a diagnosis of right shoulder bicep tendinitisalbeit, without providing an opinion as to the etiology of the disability. The Board again recognizes that the Veteran is competent to report that he suffers pain and weakness in his right bicep several times per year. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). In December 2018, due to conflicting evidence as to whether the Veteran had a current diagnosis, the Board remanded the issue of service connection for residuals of a right bicep tear/injury, to include pain and weakness, in order for the Veteran to be scheduled for a VA examination to determine whether he had a current right bicep disability, including pain resulting in functional impairment, related to service. When examined in September 2019, the VA examiner indicated that the Veteran had a diagnosis of a right bicep tear injury in 2012. The examiner found that the Veteran had the following symptoms attributable to a muscle injury: consistent loss of power and consistent fatigue-pain. The examiner noted that the functional impact of the Veteran's muscle injury interfered with his ability to keep up with work requirements due to muscle injuries. In particular, she reported that the Veteran experienced functional impact as a result of pain with bicep curls, not being able to stretch fully, not being able to lift his arms high, not being able to pick up things easily, having difficulty lifting heavy items, and having issues with carrying things without dropping them. The Board acknowledges that the September 2019 examiner indicated that the Veteran's disability was less likely than not (less than 50 percent probability) incurred in or caused by service, in part because the Veteran did not have continuity of care, and because the biceps injury had resolved. The Board emphasizes that continuity of care is not an element required for service connection to be granted. 38 C.F.R. § 3.303. In July 2020, the Board found the September 2019 VA opinion inconsistent with the evidence of record as the Veteran was treated for his right bicep after 2012. The Board found lack of compliance with prior remand directives, and again remanded the matter to clarify whether the Veteran had a current right bicep disability, to include pain resulting in functional impairment, separate from his service-connected right shoulder recurrent dislocation with arthritis and his service-connected right shoulder impairment of the humerus. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the July 2020 remand, the Veteran was examined in October 2020. The examiner indicated that it was at least as likely as not that there is a right bicep disability that is separate from the Veteran's service-connected right shoulder disability, and that the right bicep condition is related to military service. In support of his opinion, the examiner reasoned that in addition to the Veteran's history of right shoulder dislocation (treated with a Bankhart procedure in 2013), the Veteran also has a history of intermittent right biceps pain and decreased function. As evidence, the examiner cited service treatment records from February 2006, showing the initial injury, April 2006 service treatment records showing reinjury of the Veteran's right bicep, the June 2014 private opinion, documenting a diagnosis of right shoulder bicep tendinitis, and a 2019 military physical examination, documenting "persistent right bicep strain/pain." The October 2020 examiner reasoned that "the arduous duties of a Navy SEAL, a group known to have increased musculoskeletal injuries as a sequelae of these duties [made it] reasonable to expect that the veteran's chronic right biceps injury is service related, but is not related to the right Bankhart procedure in 2013." (emphasis added). The Board finds this opinion persuasive because it is well reasoned and based on a thorough evaluation of the Veteran's medical history. The Board acknowledges the March 2021 negative nexus opinion of record, but finds it less persuasive than the October 2020 positive nexus opinion because the March 2021 opinion did not afford adequate consideration to the Veteran's contention that he suffered a biceps strain in addition to a biceps tear. The March 2021 opinion ruled out a biceps tear on account of the Veteran not receiving an MRI to diagnose a tear, as well as the Veteran not having a surgical scar to repair his biceps tear. The March 2021 opinion did not adequately consider the in-service complaints of a biceps strain and re-injury, which, the Board notes are consistent with the Veteran's complaints of sequelae following service. Resolving all doubt and based on the foregoing, the Board finds that the Veteran meets the criteria for service connection for residuals of a right bicep tear/injury, to include pain and weakness. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Amanda Baker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.