Citation Nr: 22047375 Decision Date: 08/19/22 Archive Date: 08/19/22 DOCKET NO. 10-49 694 DATE: August 19, 2022 ORDER Entitlement to service connection for a right shoulder disability is granted. REMANDED Entitlement to temporary total evaluation based on the need for convalescence following right shoulder surgery is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her right shoulder disability had its onset in service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1975 to September 1975 and from July 1986 to September 1992. This case come before the Board of Veterans' Appeals (Board) from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office. As a procedural matter, this case has been before the Board on several occasions. In September 2010, the Veteran testified at a decision review officer hearing held at the RO. In February 2015, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the electronic claims file. The matters were previously before the Board in April 2015 and May 2017, when the claims were denied in an October 2018 Board decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (the Court). In October 2019, the Court granted a joint motion for remand that vacated and remanded the Board decision on both claims. Thereafter, the Board remanded the claims in March 2020 and August 2021. The extensive procedural history of this case was detailed in the August 2021 Board remand when the matter was last before the Board and remanded for additional development and VA medical opinion. That procedural history is incorporated herein by reference. The case now returns to the Board for further review. Service Connection Governing Laws and Regulations A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110; 1131. To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis and degenerative joint disease, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309 (a) is shown to be chronic in service, 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. If the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, reasonable doubt is resolved in favor of the claimant. Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); 38 U.S.C. § 5107 (b). Facts and Analysis The Veteran seeks service connection for a right shoulder disability. She testified the disability began in service as the result of shoveling snow from rooftops after record-breaking snowfall at Ft. Wainwright, Alaska. She further explained that shoulder pain began while she was undergoing treatment for neck pain and related sensory deficits and has continued to have problems since. Thus, the Veteran also contends the right shoulder disability is also secondary to the service-connected cervical spine and associated upper extremity radiculopathy disabilities. See February 2015 Board Hearing Transcript, at 3-7. The evidence of record shows the Veteran's right shoulder diagnoses include rotator cuff tear, arthritis, and strain. See e.g., December 10, 2018 Kaiser Permanente medical treatment record, x-ray report; July 2015 VA shoulder and arm Examination. Thus, the first Shedden element for service connection is met. Regarding in-service incurrence, the Veteran's service treatment records (STRs) reference complaint and treatment for shoulder pain in 1991 and 1992. In November 1991, she presented with complaints of neck, back and shoulder pain for more than a week and the provider questioned whether her right shoulder pain was muscular or neurological. See November 15, 1991 STR. Subsequent treatment records reflect pain over the right trapezius, right neck and parascapular pain, and treatment that involved trigger points over the scapula. See e.g., STRs, dated November 15, 1991, February 19, 1992, March 12, 1992, June 1, 1992, June 9, 1992. Significantly, in June 1992, she was noted to have persistent cervical pain with radiation into the shoulders, right greater than left, since November 1991. See June 11, 1992 STR, Clinical Electrophysiology examination (Fairbanks Psychiatric & Neurological Clinic). Her pain was noted as aggravated by any heavy lifting and worsened when the temperature was cold. Id. Thus, the second Shedden element for service connection is met. The dispositive issue, therefore, is whether the Veteran's right shoulder disabilities are related to service. Review of the Veteran's private medical treatment records in the evidentiary file reflect she underwent right shoulder surgery in September 2008. The VA medical opinions obtained in August 2015, November 2017, and August 2020, provided negative nexus opinions but were previously noted by the Board as inadequate for adjudication of the matters on appeal. See May 2017 Board Remand; March 2020 Board Remand; and August 2021 Board Remand. As such, the Board affords the medical opinions little, if any, probative value. Pursuant to the August 2021 Board remand, the November 2021 VA examiner reviewed the evidentiary record in conjunction with an in-person examination to provide an opinion on direct and secondary service connection. The Veteran reported her shoulder disability had worsened since onset during service with current symptoms of aching, throbbing, and stiffness that were aggravated with heavy lifting. The examiner found there was no documentation of any trauma, injuries, complaints, or symptoms of right shoulder instability, strain, rotator cuff, or arthritis during or shortly after service shoulder and therefore opined that it was less likely than not that the disability was incurred in or caused by service. As to secondary service connection, the examiner provided that medical literature did not support that degenerative disc disease of the cervical spine and sensory defects of the right upper extremity causes complications, symptoms, or conditions such as the Veteran's right shoulder disability. As the August 2021 VA medical opinion on direct service connection was based largely on the absence of contemporaneous medical evidence, and the erroneous fact that the Veteran's STRs did not note complaint or treatment for a right shoulder disability, the Board finds the examiner's opinion is of little, if any, probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Also, the August 2021 VA examiner did not provide an opinion on whether the right shoulder disability was aggravated by the Veteran's service connected neck and upper extremity radiculopathy. As aggravation must be discussed to resolve secondary service connection, the medical opinion is inadequate on this issue. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (a medical opinion is inadequate when it fails to adequately address the question of aggravation). Thus, the Bord affords the medical opinion no probative value. Under the circumstances of this case and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's right shoulder disability exhibited chronic in-service symptoms and continuous post-service symptoms. The Veteran described continued right shoulder symptoms, including pain and stiffness with activities like heavy lifting, as having occurred since active duty service. She is competent to report the symptoms she experienced from her right shoulder disability. Her lay testimony, including reports provided to examiners, is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. Moreover, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. The Board acknowledges that the Veteran has also asserted entitlement to service connection for her right shoulder disability as secondary to service connected neck and upper extremity radiculopathy disabilities. However, as the Board finds the theory of direct service connection is applicable for the Veteran's issue on appeal, it is not necessary to address alternative theories for entitlement. In sum, resolving all reasonable doubt in favor of the Veteran, the Board finds that her right shoulder disability, to include arthritis, had its onset in service and has been continuous since separation. Thus, service connection for a right shoulder disability is granted. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND The Veteran also seeks entitlement to temporary total evaluation for convalescence following surgery for the now-service connected right shoulder disability. The Board finds that the issue of a temporary total evaluation is intertwined with the matter of the appropriate initial rating for the now service-connected right shoulder disability. Thus, a decision must be deferred until the AOJ has had the opportunity to rate the disability in the first instance. The matters are REMANDED for the following action: Rate the Veteran's now service-connected right shoulder disability and readjudicate whether a temporary total disability rating is warranted at any point during the period on appeal. If the matter of a temporary total disability rating remains denied, the matter should be returned to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.