Citation Nr: 22018317 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-24 300 DATE: March 28, 2022 ORDER Entitlement to service connection for right upper extremity, to include bicipital tendonitis, bicipital tendon tear, rotator cuff tendonitis, rotator cuff tear, AC joint osteoarthritis, and shoulder pain (right upper extremity disability) is granted. Entitlement to service connection for persistent depressive disorder, secondary to service-connected right upper extremity disability, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's right upper extremity disability is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's persistent depressive disorder is caused by service-connected right upper extremity disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for persistent depressive disorder, secondary to service-connected right upper extremity disability on a causation basis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to July 1986. This case comes to the Board of Veterans' Appeals (Board) on appeal from a April 2017 and July 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2017 rating decision, the RO, inter alia, denied service connection for bicipital tendon tear right bicep and persistent depressive disorder. The Veteran disagreed with the RO's determination, and a statement of the case (SOC) was issued in March 2018 addressing the matter. The Veteran timely appealed. In the July 2018 rating decision, the RO denied service connection for right shoulder pain and right rotator cuff. The Veteran disagreed with the RO's determination, and a SOC was issued in August 2018 addressing the matter. The Veteran timely appealed. In November 2021, the Veteran testified during a virtual Board hearing before the undersigned VLJ. A copy of the transcript has been associated with the record. A claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Given the multiple right upper extremity symptoms and diagnoses in this case, the Board has recharacterized the right upper extremity claim more broadly and consolidated the claims of right shoulder/arm into a single issue for purposes of this grant. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 1. Right Upper Extremity The evidence of record reflects current right upper extremity disabilities. Specifically, a July 2018 VA examination report shows diagnoses of bicipital tendonitis, bicipital tendon tear, rotator cuff tendonitis, rotator cuff tear, AC joint osteoarthritis. Additionally, a March 2018 private treatment record shows a diagnosis of right shoulder pain. The evidence of record indicates that an in-service injury or disease requirement has been met. The service treatment records (STRs) shows complaints and treatment for right shoulder and upper arm due to a parachute jumping accident in 1984. At his November 2021 Board hearing, the Veteran testified that when he jumped out of aircraft, there was a misrun static line over his right arm, which resulted in him being towed by the helicopter. He stated that he has continued to have problems ever since his in-service injury. The Veteran noted that he did not report subsequent symptoms, because as a marine, he just lived with the symptoms. He further noted that post-service, he did not seek treatment from a doctor due to the lack of insurance and money. The Veteran's DD Form 214 shows that his military occupations specialty (MOS) was rifleman and reconnaissance man parachute jump. The evidence in the STRs, along with the Veteran's competent and credible statements are sufficient to meet the second element of the service connection claim. In a July 2018 VA examination report, the examiner opined that it would be resorting to mere speculation to conclude that the Veteran's right upper extremity conditions were incurred in service due to the parachute jump injury. The examiner acknowledged the substantial injury to the right arm/shoulder during service in 1984, however, no right shoulder or right arm abnormalities were noted in subsequent STRs or post-service medical records prior to the 2016 VA examination. The examiner noted it was unknown if there may have been other contributing factors to the current right arm/shoulder issues over the past three decades occurring after military service. In an October 2021 private treatment record, Dr. M.K. opined that the Veteran has right shoulder and biceps pain with a history of an injury in the service around 35 years ago. Dr. M.K. explained that the Veteran has had pain since that time, which has gradually worsened. Dr. M.K. noted that the pain also includes upper and lower back pain. Dr. M.K. further noted the neck pain and back stemmed from multiple parachutes jumps the Veteran did while he was in the military. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on a health care professional's conclusion that an etiology opinion would be speculative, the health care professional must explain the basis for such an opinion, or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the health care professional has considered all procurable and assembled data. Id (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the health care professional must clearly identify precisely what facts cannot be determined. Id. The July 2018 VA examiner's opinion in this case did not comply with Jones. The Court has indicated that opinions that indicate the question cannot be answered without resorting to speculation are disfavored and may only be accepted under limited conditions that were not satisfied here. Moreover, a medical examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection for purposes of the benefit of the doubt rule. Fagan v. Shinseki, 573 F. 3d 1282, 1289 (Fed. Cir. 2009). Moreover, the VA examiner failed to consider the Veteran's competent and credible statements of the onset of right upper extremity symptoms in service, and the continuation of symptoms in the years since service. The Board notes that, in light of the implicit positive nexus contained in the October 2021 private treatment records, a request for another medical opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evidence is thus at least evenly balanced as to whether the Veteran's current right upper extremity disability is related to his in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a right upper extremity disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Persistent Depressive Disorder In this case, the evidence of record indicates a currently psychiatric disability. Specifically, a December 2016 VA examination report shows a diagnosis of peristent depressive disorder. In December 2016, the Veteran underwent a VA examination. The examiner opined that the Veteran's persistent depressive disorder is less likely than not due to or the result of his right upper extremity disability. The examiner explained that the Veteran had no surgeries on his right shoulder that would cause disfigurement and there is no documented followup after he left the service. The Veteran's private treatment records demonstrate that the Veteran has received followup care for his right upper extremity after he left service. The December 2016 VA examiner implied that if there were follow up treatment for right upper extremity since service, there would be a causal relationship with peristent depressive disorder. The Board considers this an implicit nexus opinion based on the context of the Veteran's evidence of record. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In light of the Board's decision granting service connection for right upper extremity disability, the evidence is at least evenly balanced as to whether the Veteran's peristent depressive disorder is caused by his service-connected right upper extremity disability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for persistent depressive disorder is warranted on a causation basis. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.