Citation Nr: 22014249 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-28 688 DATE: March 11, 2022 ORDER Entitlement to service connection for a left shoulder disorder, diagnosed as partial left supraspinatous tendon tear, to include as secondary to lumbar strain disability, is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence of record supports a finding that the Veteran's left shoulder disorder is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disorder, diagnosed as partial left supraspinatous tendon tear, to include as secondary to lumbar strain disability, have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2012); 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 Marine Corps from July 1993 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified regarding this matter at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the electronic file. Subsequently, in March 2021, and September 2021, respectively, this matter was remanded by the Board for adequate VA examinations. Service Connection To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or in air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a), such as arthritis, is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the most persuasive evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). 1. Entitlement to service connection for a left shoulder disorder, diagnosed as degenerative arthritis, to include as secondary to lumbar strain disability, The Veteran and his representative have asserted his appeal under different theories of entitlement. However, the Board will focus its analysis on a theory of direct service connection, as it results in a full grant of the benefits sought, as explained more fully below. With regards to a current diagnosis, during the December 2021 VA Shoulder and Arm Conditions examination, the examiner confirmed a 2015 diagnosis of a partial left supraspinatous tendon tear, manifested in the left lateral pectoral area with symptoms of pressure/squeezing sensations that radiate to the lateral shoulder & scapular region, including range of motion (ROM) limitation. This was following the Board's September 2021 remand to resolve a conflicting prior diagnosis of degenerative arthritis (June 2014 VA examination) and the May 2021 VA examination's finding of a lack of a current left shoulder disability. A December 2021 radiology report ruled out left shoulder arthritis. Notwithstanding this fact, since there is a finding of a current diagnosis of partial left supraspinatous tendon tear, this element of the Veteran's service-connection claim has been met. As to in service occurrence, during the Veteran's February 2021 Board hearing, he testified that his military occupational specialty (MOS) as a "hydraulics and mechanics man" has directly contributed to his shoulder disability, reporting that the nature of his duties included consistently rebuilding, load testing, and re-stenciling 25-ton aircraft jacks (each aircraft jack weighing about 300 pounds). The Veteran also testified that he injured both shoulders (besides due to wear and tear from his duties) in service sometime in December 1994, in conjunction with a back injury that he reported to his supervisor and was sent to be medically evaluated, and later treated with muscle relaxers and Motrin. Further, that he reinjured both shoulders, including his back and neck, during a motor vehicle accident in March 1996. The Board notes that although the Veteran's service treatment records (STR) do not specifically reflect any shoulder injury, they do reflect a back injury (in December 1994), with a notation indicating that this possibly resulted from heavy lifting due to his MOS. The record reflects that the Veteran's MOS is listed as Aircraft Maintenance Ground Safety Mechanic all throughout his active-duty service. The Board further notes that following the Board's initial remand, the RO granted the Veteran service connection for his right shoulder disability in a May 2021 rating decision, effective the date of his claim (December 18, 2013) citing to a favorable VA examiner's nexus opinion, that evaluated the same in-service occurrences that the Veteran contends has resulted in his left shoulder disorder. Although no opinion was given with regards to the Veteran's left shoulder disorder, the Board acknowledges that the Veteran's referenced in-service occurrences has been conceded by the RO, and thus finds the second element of his claim has also been met. However, with regard to the last and final element, a nexus linking the Veteran's left shoulder disorder to his military service, the Board finds that the opinions of record and accompanying rationales are premised on inaccurate factual premises and/or a lack of medical evidence corroborating the Veteran's reports of his in-service injury in 1994, followed by a reinjury due to a motor vehicle accident in March 1996. For instance, none of the in-service occurrences that the Veteran has reported were taken into consideration by the VA examiner during the Veteran's initial examination in June 2014, resulting in the Board's first remand of this matter for an adequate examination in March 2021. Subsequently, the December 2021 VA examiner also found a negative nexus, for both direct service connection and secondary service connection based on aggravation, giving various reasons, including the absence of in-service medical documentation and insufficient evidence to support a left shoulder onset during service, or in the immediate period following service. As the United States Court of Appeals for Veteran's Claims (the Court) and United States Court of Appeals for the Federal Circuit (the Federal Circuit) have held that such opinions are inadequate for the purpose of readjudicating an appeal to establish service connection, the Board affords these opinions little, if any, probative weight in this matter. Sklar v. Brown, 5 Vet. App. 140 (1993); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Consequently, the Board assigns the VA examiner's opinions of record, with On the other hand, the Board finds the Veteran's statements of the continuity of his symptoms highly credible, especially in consideration of the Veteran's February 2021 Board testimony and documented chronic nature of his bilateral shoulder disorder. See, February 2021 Board Hearing Transcript. This is further supported by his medical treatment record that reflects the Veteran's post service complaints and treatment for ongoing bilateral shoulder pain. For instance, during a primary care visit in January 2020, the Veteran reported that he has been experiencing shoulder and back pain for over 20 years. Bilateral shoulder pain resulting in limited ROM is consistently listed in his treatment records as "Joints/bones/muscles: limited ROM B/L shoulders due to pain and limited." Also, during a July 2018 evaluation for shoulder and back pain, the Veteran denied any new injury, but again reported that he injured his shoulders and back while in the military in 1994, followed by a reinjury due to a motor vehicle accident in 1996, relaying the same consistent reports of the circumstances. See, Capri Records (submitted in May 2021). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, with the above-noted evidence of continuity of symptomatology and opinions of record that cannot definitely rule out the Veteran's claim of an in-service onset, and also given the circumstantial evidence of the chronic nature of his left shoulder disorder, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current left shoulder disorder, diagnosed as partial left supraspinatous tendon tear, was incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board therefore finds that service connection for his left shoulder disorder is warranted in this case. 38 U.S.C. §§ 1101, 1131. In so reaching this conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.