Citation Nr: 23015019 Decision Date: 03/13/23 Archive Date: 03/13/23 DOCKET NO. 17-24 047 DATE: March 13, 2023 ORDER Service connection for left shoulder arthritis is granted. Service connection for right shoulder arthritis is granted. FINDINGS OF FACT 1. The Veteran has current left and right shoulder disabilities diagnosed as left and right shoulder arthritis. 2. Symptoms of the left and right shoulder arthritis were continuous after service separation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left shoulder arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right shoulder arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 29, 1972 to May 26, 1985 and from January 3, 1986 to October 31, 1992. This matter is on appeal from an October 2016 rating decision issued by the Regional Office (RO), which denied reopening service connection for the left shoulder disorder and denied service connection for the right shoulder disorder. The Veteran filed a Notice of Disagreement in March 2017. A Statement of the Case was issued in March 2017. The Veteran filed a substantive appeal (VA Form 9) in April 2017. A Supplemental Statement of the Case was issued in March 2018. In February 2019, the Board reopened the claim for service connection for the left shoulder disorder. The Board remanded the claims for service connection for the left and right shoulder disorders in order to conduct a VA examination. A VA examination was conducted in June 2019. In September 2019, the Board denied service connection for both the left and right shoulder disorders. The Veteran appealed the September 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A July 2020 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. The parties agreed that the Board did not adequately explain how the June 2019 VA examination opinion substantially complied with the February 2019 Board remand. More specifically, the parties agreed that the June 2019 VA examiner did not discuss the Veteran's lay evidence in its opinion as directed by the February 2019 Board remand. See June 2019 Disability Benefits Questionnaire (Docketed as a VA examination); May 2017 Statement in Support of Claim. In January 2021, the Board remanded the issues in order to obtain a VA examination addendum opinion in compliance with the February 2019 Board remand. A VA examination addendum opinion was rendered in January 2021. A SSOC was issued in April 2021. In July 2021, the Board found that the January 2021 VA examination addendum opinion was inadequate as it did not provide the requested opinion and relied solely on the absence of a documented diagnosis and/or treatment in service. The Board remanded the issues again in order to obtain an adequate VA examination addendum opinion. A VA examination addendum opinion was issued in August 2021. A SSOC was issued in December 2021. In April 2022, the Board found that the August 2021 VA examination addendum opinion was adequate as it considered the Veteran's lay evidence. The Board denied both issues. The Veteran appealed the April 2022 Board decision to CAVC. An October 2022 Order by CAVC adopted a JMPR filed by the parties. The parties agreed that the Board failed to provide adequate reasons or bases as to whether the August 2021 VA examination report complied with its July 2021 remand instructions. More specifically, the parties agreed that the Board failed to address whether the August 2021 VA examiner provided a full explanation of its rejection of the Veteran's claimed medical history pursuant to the July 2021 Board remand directives. The parties also agreed that the Board failed to address whether the August 2021 VA examiner adequately explained why she expected the Social Security Administration report to include a discussion of the Veteran's bilateral shoulder disorder. In response to the October 2022 JMPR, the Board finds that the August 2021 VA examiner provided a full explanation of her rejection of the Veteran's claimed medical history. The August 2021 VA examiner rejected the Veteran's claim that the bilateral shoulder disorder began in service by citing to contrary probative evidence such as: the lack of an in-service shoulder diagnosis, the fact that the Veteran did not report a shoulder disability in the 2016 Social Security application, the Veteran's post-service occupations that were physically demanding, and the evidence of the first reported shoulder pain of record was over a decade after service. Even though the August 2021 VA examiner did not explain the relevance of the Veteran's omission of a shoulder disorder in the Social Security application, the Board will discuss its relevance in this decision. The omission is relevant because had the Veteran experienced bilateral shoulder symptoms since service separation, like pain, limitation of motion, and popping, he would have reported that the bilateral should disorder impacted his ability to perform the duties associated with his physically active employment in the Social Security application. As such, the Board finds that the August 2021 VA examiner complied with the directives in the July 2021 Board remand. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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. See 38 C.F.R. § 3.303(d). The Veteran is currently diagnosed with arthritis, which is considered a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service Connection for Left Shoulder Arthritis 2. Service Connection for Right Shoulder Arthritis The Veteran contends that the current arthritis in both shoulders is related to service. He claims that he had to carry heavy ammunitions over both shoulders, that were 40 to 60 pounds, in service for 20 years. See March 2017 Notice of Disagreement; DD Form 214. The Veteran also explained that he injured his shoulders in 1980 when he fell, hitting his right shoulder on a turret, gear boxes, and hydraulic hoses then hitting his left shoulder on the gun tube. See May 2017 Statement in Support of Claim; October 1980 Service Treatment Records (recording an in-service fall). The Veteran has current left and right shoulder disabilities diagnosed as left and right shoulder arthritis. See June 2019 VA Examination. The evidence is in equipoise as to whether the symptoms of the left and right shoulder arthritis were continuous after service separation. The Veteran has repeatedly and credibly reported continuous bilateral shoulder symptoms since service separation. See March 2006 VA Treatment Records (reporting left shoulder pain); March 2006 VA Treatment Records (reporting right shoulder pain); August 2008 VA Treatment Records (reporting left shoulder pain); July 2009 VA Treatment Records (reporting left shoulder pain); December 2009 VA Treatment Records (reporting left shoulder pain); July 2011 VA Treatment Records (reporting pain in both shoulders); July 2013 Fully Developed Claim (requesting service connection for the left shoulder); September 2013 VA Treatment Records (reporting pain in left shoulder); December 2013 Supplemental Claim; August 2016 Fully Developed Claim (requesting service connection for both shoulders); October 2016 VA Treatment Records (reporting right shoulder pain); March 2017 Notice of Disagreement; April 2017 Substantive Appeal; May 2017 Statement in Support of Claim (reporting pain in both shoulder); June 2019 VA Examination (reporting pain in both shoulders); January 2022 Appellate Brief. The record contains several VA examination opinions, all of which render negative nexus opinions for both claims of service connection. The opinions pertain only to the theory of direct service connection (38 C.F.R. § 3.303 (d)), so are not probative in determining presumptive service connection based on the continuity of symptomatology (38 C.F.R. § 3.303(b)) of a chronic disease, like arthritis, since service separation. As presumptive service connection is being granted based on continuous symptoms since service separation under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. Based on the foregoing and resolving reasonable doubt in the Veteran's favor, the criteria for service connection for right shoulder arthritis and the criteria for service connection for left shoulder arthritis have both been met. David Robertson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.