Citation Nr: 22062467 Decision Date: 11/08/22 Archive Date: 11/08/22 DOCKET NO. 17-50 002A DATE: November 8, 2022 ORDER The appeal for service connection for residuals of a broken right hand is moot and is dismissed. The appeal for service connection for erectile dysfunction as a residual of mumps is moot and is dismissed. REMANDED The appeal for service connection for status post repair fracture of the right acromioclavicular joint (claimed as a right shoulder condition) is remanded. FINDINGS OF FACT 1. Prior to the issuance of this decision, a Regional Office of the United States Department of Veterans Affairs awarded the Veteran service connection for residuals of a broken right hand. 2. Prior to the issuance of this decision, a Regional Office of the United States Department of Veterans Affairs awarded the Veteran service connection for erectile dysfunction as a residual of mumps. CONCLUSIONS OF LAW 1. The relief sought by the Veteran has been granted. The criteria for dismissal of the appeal for service connection for residuals of a broken right hand are satisfied. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.303, 19.55. 2. The relief sought by the Veteran has been granted. The criteria for dismissal of the appeal for service connection for erectile dysfunction as a residual of mumps are satisfied. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.303, 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the North Carolina Army National Guard from July 1976 to March 1997, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). He never served on active duty. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a February 5, 2016, decision issued by a Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for a right shoulder disability, residuals of a broken right hand, and erectile dysfunction as a residual condition caused by mumps. The Veteran filed a timely Notice of Disagreement. On January 5, 2017, the VA Regional Office issued a Statement of the Case confirming the denial of service connection for a right shoulder disability and erectile dysfunction. But in a January 5, 2017, decision, it granted service connection for residuals of a broken right hand, assigning a noncompensable disability rating effective July 17, 2015. The Veteran filed a timely appeal (VA Form 9) to the Board from the Statement of the Case and requested a hearing before the Board. In September 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). It follows, that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. 1. The appeal for service connection for residuals of a broken right hand is moot. During the Veteran's September 2022 Board hearing, it was stated on the record by the Veterans Law Judge and the Veteran's representative that they had an off-the-record conversation about the Veteran's claim for service connection for residuals of a broken right hand. September 2022 Board Hearing Transcript, at 2. It was stated that remand was required because the VA Regional Office did not issue a Statement of the Case with respect to this particular claim for service connection. Id.; see Manlincon v. West, 12 Vet. App. 238, 24041 (1999) (VA is required to issue a statement of the case after receipt of a notice of disagreement in a Legacy appeal); 38 C.F.R. §§ 20.200, 20.904(c). On review of the claims file, the Board finds that is was mistaken in the belief that VA had failed to provide a Statement of the Case. Rather, none was required. The Veteran filed his claim for service connection for residuals of a broken right hand on July 17, 2015. An initial decision was issued February 5, 2016, denying service connection. The Veteran filed a timely Notice of Disagreement on February 29, 2016. On January 25, 2017, the VA Regional Office awarded service connection and assigned an initial non-compensable evaluation for residuals of a broken right hand. Thus, no Statement of the Case was required. A Statement of the Case is only required when "the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full." 38 C.F.R. § 20.904(c); see also 38 C.F.R. § 19.24(b)(5) (" . . . VA will prepare a Statement of the Case . . . unless the disagreement is resolved by a grant of the benefit(s) sought on appeal . . . .") (Emphasis added). Thus, when the VA Regional Office granted the Veteran service connection for residuals of a broken right hand, that was a full award of benefits. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim). The Veteran did not take action following the July 25, 2017, decision, such as filing a notice of disagreement with the assigned rating or effective date. As the Veteran received the full benefits sought and did not otherwise disagree with the assigned rating or effective date, no statement of the case was required. The Board has an obligation to ensure that a case or controversy exists. 38 U.S.C. §§ 7104, 7105. A case or controversy ceases to exist, and a case becomes moot, "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Godsey v. Wilkie, 31 Vet. App. 207, 218 (2019). When the relief sought by an appeal has been accomplished, the appropriate course of action is for the Board to dismiss the matter as moot. See Long v. Principi, 17 Vet. App. 555, 557 (2004). The Board finds that the July 25, 2017, rating decision awarding the Veteran service connection for residuals of a broken right hand was a full grant of the benefits sought, and the Veteran took no action to appeal any part of that decision. Thus, there is no appeal before the Board on which further relief may be granted. Therefore, the appeal is moot and is dismissed. 2. The appeal for service connection for erective dysfunction as a residual of mumps is moot. The Veteran filed his claim for service connection for erectile dysfunction as a residual of mumps on July 17, 2015. An initial decision was issued February 5, 2016, denying service connection. The Veteran filed a timely Notice of Disagreement on February 29, 2016. On July 25, 2017, the VA Regional Office issued a Statement of the Case continuing denial of service connection. The Veteran timely appealed that decision on October 17, 2017. While the Veteran's appeal was pending at the Board, on June 3, 2022, he filed a Supplemental Application for service connection (VA Form 20-0995) for erectile dysfunction as a residual of mumps under the Appeals Modernization Act (AMA), also referred to as the modernized review system. See 84 Fed. Reg. 138, 169 (Jan. 18, 2019); 38 C.F.R. § 19.2. On October 11, 2022, the VA Regional Office issued a decision granting service connection for erectile dysfunction as a residual of mumps. As the VA Regional Office has already granted the Veteran service connection for his erectile dysfunction, there is no additional benefit that the Board may award in this appeal. This appeal deals only with the denial or grant of service connection for erectile dysfunction, which the VA Regional Office has already granted. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (discussing down stream issues). The Board finds that the October 11, 2022, rating decision awarding the Veteran service connection for erectile dysfunction as a residual of mumps was a full grant of the benefits sought in this appeal. Thus, there is no appeal before the Board on which further relief may be granted. Therefore, the appeal is moot and is dismissed. Godsey, 31 Vet. App. at 218; Long, 17 Vet. App. at 557. REASONS FOR REMAND 1. The appeal for service connection for status post repair fracture of the right acromioclavicular joint (claimed as a right shoulder condition) is remanded. On February 18, 1979, while on INACDUTRA, the Veteran was involved in a motor vehicle accident. A military medical report documented that he received medical treatment for a right shoulder strain as a result of the accident. His medical records indicate subsequent medical treatment, including surgeries, to his right shoulder. He asserts his in-service shoulder injury that resulted from his motor vehicle accident led to current right shoulder surgeries and limitations. See generally September 2022 Board Hearing Transcript. VA obtained two medical examinations and opinions assessing the Veteran's right shoulder, one in January 2016 and the other in August 2022. Each examiner opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by military service. Each examiner failed to address the Veteran's military medical records documenting his right shoulder injury in February 1979 during his period of INACDUTRA. Thus, each opinion is not supported by an adequate rationale. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). Therefore, remand is required for an addendum opinion. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from an appropriately qualified clinician addressing the onset and etiology of the Veteran's right shoulder disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding the following: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right shoulder injury sustained during INACDUTRA on February 2, 1979, in a motor vehicle accident, led to subsequent medical treatment and/or surgery, which in turn caused a current right shoulder disability? Put another way: The examiner is informed that the Veteran underwent right shoulder surgery. Thus, in the above question, the examiner is being requested to address whether his right shoulder injury in-service at least as likely as not led to his right shoulder treatment/surgery, such that his current right shoulder disability is at least as likely as not a consequence of his initial in-service right shoulder injury/trauma. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a right shoulder disability in service or the assertion that an in-service event, injury, or illness led to his current right shoulder disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, may be considered an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, may be considered insufficient rationale. If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather than providing a conclusory opinion. For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statements, if any, affect the conclusion? If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.