Citation Nr: 22016702 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 15-06 655 DATE: March 23, 2022 ORDER Entitlement to service connection for a left shoulder disorder is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's current left shoulder disorder is attributable to an injury incurred during military service. CONCLUSION OF LAW Resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for left shoulder disorder are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from March 1978 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran testified during two Board hearings each conducted by different Veterans Law Judge (VLJ), Judge Blackwelder in November 2017 and the undersigned VLJ Mays in December 2020. Copies of the hearing transcripts are of record and have been reviewed. Because two VLJs have each conducted a hearing on the instant issue on appeal, a panel decision is required for final adjudication of the claim. Under 38 U.S.C. § 7102, an appeal can be assigned only to an individual VLJ or to a panel of not less than three VLJs. In Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011), the United States Court of Appeals for Veterans Claims interpreted 38 C.F.R. § 20.707 to require that where an appellant appeared for hearings before two different VLJs, a panel decision by three judges is required, and the appellant must be provided the opportunity for a hearing before the third member of the panel prior to issuance of a decision on the appeal. Id. Here, the Board has not offered the Veteran the opportunity to testify before a third VLJ. However, he is not prejudiced because the Board is granting the benefit he seeks. In correspondence dated December 2021, the Veteran's representative requested an additional Board hearing to offer further evidence in the form of testimony. See Correspondence from representative A. Jackson received December 22, 2021. The Board is aware of the Court's decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. However, as the grant of benefits sought in the Veteran's claim for service connection for a left shoulder disorder satisfies the claim in full, the Veteran will not be prejudiced by the Board rendering a decision without further delay. Procedural History As pertinent here, in September 2018, the Board remanded the Veteran's claim for entitlement to service connection for a left shoulder disorder for further development. In February 2021, the Board again remanded the claim to ensure compliance with its prior remand directives, requesting an addendum VA etiology opinion, and directing the RO to fulfill the request of the Veteran's representative to provide the professional credentials of the October 2019 VA examiner. February 2021 VA correspondence reflects that the credentials of the October 2019 VA examiner were provided to the Veteran and his representative. Thereafter, the Veteran was afforded a VA examination and the August 2021 examination report and associated etiology opinions are of record and have been reviewed. The Board finds substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The AOJ thereafter sought another VA opinion in November 2021 that has been reviewed by the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of 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). The record reflects that the Veteran is currently diagnosed with arthritis (degenerative joint disease), which is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, presumptive service connection under 38 C.F.R. § 3.303(b) must be considered. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, when a veteran served 90 days or more of active service, a chronic disease specified under 38 C.F.R. § 3.309(a) will be presumed to have been incurred in or aggravated by service if such disease becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, however, the record does not reflect diagnosis of arthritis until many years after separation from service. Therefore, the chronic disease presumptions are not for application. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis The Veteran asserts that his currently diagnosed left shoulder disability is related to a left shoulder injury incurred in service. As an initial matter, the Veteran is currently diagnosed with left shoulder impingement syndrome and left shoulder osteoarthritis. See, e.g., Correspondence from F. Graf, M.D. received April 5, 2018; VA Primary Care Note dated December 7, 2019; VA Shoulder and Arm Conditions examination dated August 21, 2021. The Veteran has asserted that he injured his left shoulder during service when he fell on, or from, a bulldozer and while lifting. See, e.g., Correspondence from F. Graf, M.D. received April 5, 2018; VA Shoulder and Arm Conditions examination dated October 10, 2019 at pg. 3; Board hearing transcript dated December 7, 2020 at pg. 3. The service treatment records are silent for symptoms, diagnosis, or treatment of a left shoulder injury or disorder. Nonetheless, his description of an in-service injury on a bulldozer and/or lifting is generally consistent with his military occupational specialty (MOS) of Engineer Equipment Mechanic as reflected in his DD Form 214. He is competent to report that he fell and lifted a heavy object and is competent to report resultant pain therefrom. Moreover, there is no evidence of record that weighs against the Veteran's assertions. Therefore, the Board knows of no reason not to find the Veteran's statements credible in this regard. The Veteran has testified that he experienced pain in his left shoulder ever since the in-service injury. Post-service treatment records reflect that the Veteran reported undergoing surgery on his left shoulder in April 2010, and that he experienced neck pain radiating into this left shoulder from an August 2010 car accident. See Private treatment notes dated October 8-9, 2010. Thereafter, December 2010 VA treatment notes reference a left shoulder prosthesis under past medical history, and August 2014 VA notes reference left shoulder arthroscopic pain. See VA Primary Care Note dated December 1, 2010; VA Primary Care Note dated August 4, 2014. More recently, the Veteran's left shoulder was treated with a steroid injection in January 2017 and a May 2017 MRI indicated evidence of post-surgical changes at the acromioclavicular joint, possible sequela of adhesive capsulitis, and osteoarthritis. See, e.g., VA Left Shoulder MRI dated May 5, 2017; VA Primary Care Notes dated August 11, 2017, December 7, 2019, and July 13, 2021. A March 2018 medical opinion by non-VA orthopedic surgeon F. Graf M.D. submitted in support of the Veteran's claim reflects Doctor Graf's opinion that the Veteran's currently diagnosed left shoulder impingement is at least as likely as not related to the described fall from bulldozer during service. The opinion rests on Doctor Graf's review of the relevant medical treatment records as well as consideration of the injury described by the Veteran which appears to coincide with other physical injuries reflected in the service records at that time. See Correspondence from F. Graf, M.D. received April 5, 2018. The Board appears to have previously assigned this opinion low probative weight as it found the opinion conclusory. See Board Decision and Remand dated September 17, 2018. An October 2019 VA opinion regarding the likely etiology of the Veteran's left shoulder disorder was previously found inadequate for adjudication purposes by the Board. See Board Remand dated February 11, 2021. During the December 2020 Board hearing, the Veteran stated he injured his left shoulder in service in 1979 when he fell onto the track of a bulldozer. See Board hearing transcript dated December 7, 2020 at pg. 3. He further stated that he was not afforded treatment for his left shoulder injury at that time. Id. at pg. 4. He described how he has experienced left shoulder pain from the time of his fall to the present. Id. at pg. 5. Pursuant to the Board's February 2021 remand, the Veteran was afforded a VA examination in August 2021. The VA examiner noted diagnoses of left shoulder impingement syndrome, left rotator cuff tear, and left total shoulder replacement. Although the associated medical opinion is not a model of clarity, the VA examiner opined that it is at least as likely as not that the Veteran's currently diagnosed left shoulder condition is related to the claimed in-service injury. While acknowledging that there is no evidence of a left shoulder injury during service, the VA examiner considered the Veteran's description of his injuries during service as provided during the August 2021 examination, the Veteran's lay statements reflected in the treatment records and the March 2018 medical opinion. The examiner found no evidence to dispute a relationship between the current left shoulder disability and service. See VA Medical Opinion dated August 21, 2021 and Addendum dated August 31, 2021. The addendum VA opinion was provided by the August 2021 VA examiner in reply to the AOJ's request for clarification, which, in part, asserts that the examiner did not review the entire claims file and that her identification of left shoulder replacement in the examination report is not supported by the record. See VA Examination Rework Scheduling Requested dated August 26, 2021. To the contrary, the Board observes that the August 2021 examiner specifically noted that she had reviewed the claims file. Further, VA treatment notes dated December 1, 2010 include a notation under past medical history of "left shoulder prosthesis," which, regardless of its accuracy, supports the August 2021 VA examiner's identification of a left shoulder replacement, and demonstrates her file review. With the foregoing in mind, the Board finds that the collective August 2021 VA medical opinion (August 2021 opinion and addendum) is competent, credible and probative: It was authored by a VA clinician who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of his left shoulder disorder; the opinion was based on examination and interview of the Veteran and review of the evidence of record as well as the Veteran's lay statements. The opinion is not inconsistent with the medical evidence of record and contains a clear conclusion with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez, 22 Vet. App. at 301-02. Notably, there are no medical opinions or other competent medical evidence of record that weighs against the August 2021 opinion. Despite obtaining the favorable August 2021 opinion, which is sufficient for determination of the claim, the AOJ sought yet another etiology opinion, noting incorrectly that the August 2021 VA examiner's opinion is not based on a complete review of the claims file. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003); 38 C.F.R. § 3.304(c) (development of evidence for a service connection claim should not be undertaken when evidence present is sufficient for its determination). A November 2021 opinion from the VA examiner who authored the inadequate October 2019 VA opinion essentially repeats and endorses the October 2019 opinion and restates that the Veteran's service treatment records include no evidence of a left shoulder injury, thereupon concluding that it is less likely than not that the currently diagnosed left shoulder impingement is related to service. See VA Medical Opinion dated November 9, 2021. However, as previously emphasized by the Board, where a VA examiner does not comment on the veteran's report of in-service injury and instead relies on the absence of evidence in the service medical records to provide a negative opinion, the opinion is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the Board finds the November 2021 opinion inadequate and of no probative weight. Given the medical evidence of a current disability, competent evidence of an in-service left shoulder injury with resultant pain ever since, and the August 2021 VA opinion and addendum, the Board finds that the evidence is, at the very least, in relative equipoise as to whether the Veteran's currently diagnosed left shoulder impingement is related to service. As such, service connection for a left shoulder disability is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals TBD To Be Determined Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.