Citation Nr: 22018077 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 11-29 355 DATE: March 28, 2022 ORDER Entitlement to service connection for a left shoulder disability (status-post surgery due to frequent dislocation) is granted. FINDINGS OF FACT 1. A left shoulder disability manifest by intermittent left shoulder pain after an accident in 1991, shoulder dislocation, open reduction internal fixation surgery (ORIF), and instability clearly and unmistakable preexisted service. 2. The evidence does not show that the Veteran's left shoulder disability was not clearly and unmistakably aggravated by service. CONCLUSION OF LAW A left shoulder disability clearly and unmistakably preexisted service and there is not clear and unmistakable evidence that the disability was not aggravated during service. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306, 3.310(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1983 to July 1987, and from November 2002 to September 2003, with service in Kuwait and Iraq in 2003. He received the National Defense Service Medal (twice), Armed Forces Reserves Medal (twice) and with M Device, and Army Reserve Components Achievement Medal. His Military Occupational Specialty (MOS) was as a crane operator. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, the Veteran died on January [REDACTED], 2015. The Appellant in this case is the Veteran's surviving spouse who was properly substituted under 38 C.F.R. § 3.1010. The substitution request was granted in October 2019. Thus, the claim of entitlement to service connection for limitation of motion of the arm is properly before the Board with the Appellant substituting for the deceased Veteran. The Appellant was afforded a hearing before the undersigned Veterans Law Judge on April 20, 2021. A copy of that transcript is of record. A July 2021 Board decision remanded this matter for a new VA examination. That development is complete in substantial compliance with remand directives. 1. Entitlement to service connection for a left shoulder disability The Appellant contends that the Veteran's left shoulder disability was related to service or was aggravated in service because although he was precluded from heavy lifting, the restriction was ignored, and he engaged in heavy lifting. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110, 1131. 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran is considered in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A history of conditions recorded at the time of the entrance does not establish whether a preexisting condition applies to a finding of sound condition at enlistment. 38 C.F.R. § 3.304(b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to the onset of the disability at issue. Id. To rebut the presumption of soundness, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See Wagner, 370 F.3d at 1096. VA may find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If this burden is met, the veteran is not entitled to service-connection. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption has not been rebutted. Id. at 1094. In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1094, 1096; (holding that the intent was to convert aggravation claims to service connection claims where the government fails to overcome the presumption of soundness); 38 C.F.R. § 3.322. Application The Veteran's Service Treatment Record (STR) notes a shoulder injury in 1995 and surgery in April 1995. The Veteran indicated on the report that he could not lift anything above his head due to his left shoulder. Despite this, a medical examiner indicated he met the qualifications. The Veteran was afforded a VA examination in April 2009. The examiner noted that the Veteran had injured his left arm between deployments, but that there was no evidence of restricted duties. The 2009 examiner noted evidence of surgery to the left shoulder, and that a current examination shows evidence of dislocation. The examiner noted a tiny loose body (bone fragment) adjacent to the top of the clavicle at the AP joint space. The examiner stated that the left shoulder condition affected the Veteran's work, and he was assigned different duties. The examiner noted subluxation in the left shoulder. However, regarding whether his condition was aggravated by service, the examiner stated that she could not provide an opinion as to aggravation without resorting to speculation. The examiner stated, "[w]hile I have no good reason to disbelieve him, there is no way I can determine the amount and degree of heavy manual work he was required to do while deployed," or whether his physical profile was ignored. The Board found the 2009 medical opinion inadequate because it did not use the correct legal standard as it did not opine whether the shoulder condition was clearly and unmistakably not aggravated by service. The examiner also appeared to discount lay statements based on a lack of contemporaneous evidence. For these reasons, the Board remanded the matter to provide a new medical opinion on aggravation of a pre-existing condition without resorting to speculation. A new VA opinion was provided in December 2021. In providing a negative aggravation of a preexisting opinion, the examiner stated that despite Veteran's contention his left shoulder was aggravated in service, there is no record during this period of shoulder pain to affirm his statements. The 2021 examiner reasoned that the Veteran's complaints of post-2003 shoulder pain were not documented until around 2009-2011. It appears that the examiner discounted the lay statements based on a lack of treatment records. The examiner also did not clearly address profile limitations noted in his STR in 2004, instead noting that he worked a truck driver in civilian life. Finally, the examiner did not provide affirmative clear and unmistakable evidence the Veteran's left shoulder was not aggravated by service. The Veteran's MOS was as a crane operator. His Military Personnel Record (MPR) indicates he was required to do lifting and loading as an equipment specialist. The Veteran expressly indicated that he had a left shoulder problem that limited his ability to work in his MOS. Further, the Veteran reported intermittent left shoulder pain after an accident in 1991, and ORIF surgery for shoulder dislocation with two screws inserted in 1995. The Veteran's Reserve STRs document that his shoulder limitations were noted in at least one profile limitation in 2004 as well as on a 2004 Physical Examination, with the Veteran reporting continued left shoulder pain. This profile was noted after his second period of active duty and following his deployment. Here, only the Veteran's history of shoulder surgery was recorded in the entrance medical examination report. The Veteran's shoulder was found normal and acceptable for service. Although his history of a left shoulder injury was noted on entrance examination, following examination, he was deemed fit for service vis-à-vis his left shoulder disability. Therefore, he is entitled to a presumption of soundness as to his left shoulder. Because the Veteran is entitled to a presumption of soundness, the Board must determine whether there is clear and unmistakable evidence a left shoulder disability existed prior to service and was not aggravated during service. Wagner, 370 F 3d at 1089. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability both preexisted service and was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153. Here, the Board finds that there is clear and unmistakable evidence his shoulder disability predated his second period of active service. However, regarding the second prongclear and unmistakable evidence the shoulder disability was NOT aggravated by servicethe Board finds that VA had not met its burden. Neither examiner cited clear and unmistakable affirmative evidence that the Veteran's shoulder disability was NOT aggravated by service. Both relied in part upon a lack of contemporaneous records, and the 2021 examiner did not address statements of continued pain while in service, which was documented in post-deployment questionnaires dated in 2003. Therefore, the record does not contain clear and unmistakable evidence his shoulder was not aggravated by service. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence is an onerous standard. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Here there is little to no evidence establishing that the late Veteran's left shoulder disability did not increase during service or that any increase was due to the natural progress of a preexisting disability. (Continued on the next page) The claim is granted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.