Citation Nr: A24020522 Decision Date: 04/23/24 Archive Date: 04/23/24 DOCKET NO. 240229-421711 DATE: April 23, 2024 ORDER Entitlement to service connection for right shoulder rotator cuff tendonitis, rotator cuff tear, with osteoarthritis is granted. Entitlement to service connection for right testicular hydrocele is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his right shoulder disability is etiologically related to his service. 2. Resolving reasonable doubt in favor of the Veteran, his right testicular hydrocele is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right shoulder rotator cuff tendonitis, rotator cuff tear, with osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right testicular hydrocele have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to August 1966. This matter was previously remanded by the Board of Veterans' Appeals (Board) in August 2021 for further development. In a November 2021 rating decision, the Regional Office (RO) continued the denial of service connection for a right shoulder disability and right testicular hydrocele. In October 2022, the Veteran filed VA Form 20-0996, requesting higher-level review of the November 2021 rating decision. In December 2022, the RO found duty to assist errors were committed in failing to afford the Veteran a VA examination and opinion. In regard to the right shoulder disability, the RO identified the following favorable finding: "The evidence shows that a qualifying event, injury, or disease had its onset during your service. You are in receipt of a Bronze Star medal with a 'V' device, and were a medical specialist from which we may concede repeated use of the shoulder to lift, carry, and haul heavy equipment and service members, as part of medevac is consistent with the hardships, circumstance and conditions of service." In regard to the right testicular hydrocele, the RO identified the following favorable finding: "The evidence shows that a qualifying event, injury, or disease had its onset during your service. You are in receipt of a Bronze Star medal with a 'V' device, and were a medical specialist from which we may concede repeated rides in a helicopter as part of the medevac is consistent with the hardships, circumstance and conditions of service. The evidence shows that a qualifying event, injury, or disease had its onset during your service. You had a hard landing in a helicopter in 1966 in which you landed straddling a strut." In a July 2023 supplemental rating decision, the RO continued the denial of service connection for a right shoulder disability and right testicular hydrocele. The Veteran initiated this appeal by filing a February 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), electing the Direct Review Docket; therefore, the Board may only consider the evidence of record at the time of the RO decision on appeal. 38?C.F.R. §?20.302(a). 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. §§ 1110, 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). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases 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; 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. Entitlement to service connection for right shoulder rotator cuff tendonitis, rotator cuff tear, with osteoarthritis. The Veteran contends he is entitled to service connection for his right shoulder disability because the injury occurred in service. In January 2019, the Veteran submitted a statement from Dr. S.C. In the statement, Dr. S.C. explains that he has treated the Veteran since 2008. Dr. S.C. noted that since the injuries the Veteran incurred in the service in 1965 and 1966, the Veteran has had restricted right shoulder motion and pain due to a torn rotator cuff. Dr. S.C. stated it is supported by radiologic evidence in the Veteran's VA health record. The Veteran underwent a VA examination in August 2021. The examiner reviewed the evidence of record and examined the Veteran in-person. The Veteran reported he injured his right shoulder in 1966 while working as a medic on a helicopter; he reached down to grasp a soldier. He reported the onset as about five years ago. The examiner opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that after a thorough review of the record, the examiner was unable to find any documentation of a shoulder injury during service, and no evidence of chronicity between service and documentation of a right shoulder condition in 2013. The Veteran underwent a second VA examination in May 2023. The examiner noted the Veteran has limited range of motion across the body and pain reaching overhead. The examiner diagnosed the Veteran with rotator cuff tendonitis, rotator cuff tear, and degenerative arthritis. The Veteran reported the onset of his shoulder disability as 1966. He reported that he pulled his right shoulder while working as a medic and it has been painful since. The examiner noted the date of diagnosis for the right shoulder disability is 2012. The examiner concluded it is less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the claimed injury in service is not mentioned in the record. In a second May 2023 VA opinion, the same examiner noted that she was "[u]nable to confirm if the Veteran's current right shoulder osteoarthritis is incurred in or caused by service. Therefore in [her] opinion, the right shoulder osteoarthritis [is] less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by (the) shoulder during service as due to the repeated stresses, which the examiner must concede, regardless of whether shown in the STRS, as a result of the veteran's duties as a medic, and from which the veteran received a Bronze Star with 'V' device, from carrying, lifting, and hauling heavy equipment and wounded patients." As noted above, the RO favorably found that the Veteran likely injured his right shoulder in service as this is consistent with the hardships, circumstances, and conditions of his service. There is unfavorable medical opinion evidence against the claim and favorable medical opinion evidence in favor of the claim. There are inadequacies in the private opinion and the May 2023 VA examiner essentially provided an inconclusive opinion notwithstanding her ultimate negative disposition. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for right shoulder rotator cuff tendonitis, rotator cuff tear, with osteoarthritis is warranted. 2. Entitlement to service connection for right testicular hydrocele. The Veteran contends his right testicular hydrocele is due to an injury he sustained in Vietnam in 1966. See January 2019 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The Veteran underwent a VA examination in August 2021. During that examination, the Veteran reported that when he was working as a medic on a helicopter, the helicopter made a hard landing which caused him to land straddle over a strut. This incident led to him having a left hydrocelectomy. He said he also had a right hydrocele but this was never treated. The examiner explained that he was unable to find documentation of a right hydrocele during service to establish a nexus. As such, the examiner opined that it is less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran underwent a second VA examination in May 2023. The Veteran reported the onset as 1966. The examiner noted that there is no c-file evidence of any right testicular hydrocele diagnosis. The Veteran's right testicular hydrocele was discovered in 2018 during an ultrasound, and it has been checked again in 2020 and 2022 with no significant changes in the size from the 2018 ultrasound. The examiner explained that a gap of more than 20 years exists between the separation from service and the Veteran's diagnosis in 2018. The examiner did not find chronicity of care in the record. The examiner opined that the Veteran's right testicular hydrocele is less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by service. In a second May 2023 VA opinion, the same examiner noted "[w]ithout mere speculation, [she] cannot determine that this recent right testicular hydrocele was caused by the incident in 1966 due to insufficient evidence. Therefore, in [her] opinion, the right hydrocele is less likely than not (likelihood is less than approximately balanced or nearly equal) the result of hitting a strut in a helicopter, which we require the examiner to accept as credible, in light of the veteran's service as a medic, and receipt of a Bronze Star with "V" device, as riding in helicopters is consistent with the circumstances, conditions, and circumstances of service." As noted above, the RO favorably found that the Veteran likely sustained the claimed injury as this is consistent with the hardships, circumstances, and conditions of his service. The May 2023 VA examiner essentially provided an inconclusive opinion notwithstanding her ultimate negative disposition. Notably, service connection is in effect for left testicular hydrocele, status post hydrocelectomy based on the same claimed mechanism of injury. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for right testicular hydrocele is warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Taylor, Jarmeika L. 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.