Citation Nr: 25005397 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 24-00 101 DATE: April 22, 2025 ORDER Entitlement to service connection for a right shoulder disability, to include acromioclavicular osteoarthritis, labral tear, including SLAP, and synovitis and tenosynovitis, is granted. REMANDED Entitlement to a disability rating in excess of 30 percent for left wrist ganglion cyst, status post repair with degenerative arthritis, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's right shoulder disability, to include acromioclavicular osteoarthritis, labral tear, including SLAP, and synovitis and tenosynovitis, had its onset during active-duty service and has persisted since. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability, to include acromioclavicular osteoarthritis, labral tear, including SLAP, and synovitis and tenosynovitis have been met. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision from a Department of Veteran Affairs (VA) Regional Office (RO). The Veteran requested a video hearing before a Veterans Law Judge (VLJ) in his April 2024 substantive appeal. The Veteran testified at a hearing before the undersigned VLJ in September 2024. A transcript of the hearing has been associated with the claims file. As a procedural matter, at the September 2024 hearing, the Veteran and his attorney, waived agency of original jurisdiction (AOJ) consideration of any evidence received after the February 2024 Statement of the Case (SOC). Although the Veteran also initially appealed the denial of service connection for a cervical spine and bilateral foot disability, those benefits were granted with an evaluation of 20 percent of cervical strain in a January 2025 rating decision, and a noncompensable evaluation of bilateral pes planus in a July 2022 rating decision. Therefore, there are no further questions of fact or law remaining with regard to these issues and the matters are not currently before the Board. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Sheddon v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In deciding the Veteran's claim, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether the persuasive evidence is against the claim, in which case the claim is denied. 38 U.S.S. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for a right shoulder disability, to include acromioclavicular osteoarthritis, labral tear, including SLAP, and synovitis and tenosynovitis. The Veteran contends he has a right shoulder disability due to military service. In November 2017, the Veteran was afforded a VA medical examination, where he was diagnosed with acromioclavicular osteoarthritis, labral tear including SLAP, and synovitis and tenosynovitis of the right shoulder. As such, the first element required for service connection has been met. Regarding an in-service event or injury, the Veteran's service treatment records (STRs) contain documentation from November 21, 1990, at the little Rock Air Force Base that the Veteran experienced an injury to the right shoulder, where he fell on his right shoulder 3 weeks ago. See VBMS, document labeled STR- Medical- Photocopy, receipt date 9/29/2017, page 1 of 10. At a February 2024 Board hearing for the Veteran's cervical spine disability, he testified that while working on a C-130, he was on a B1 maintenance stand, which is an elevated platform where one gets on and off an aircraft; that he took a step and tumbled down the stairs and landed on the concrete on the flight line; that he landed on his shoulder and tweaked his neck and back; that he was really sore, and; that he went to the clinic and complained of the pain he was suffering. The Veteran also testified that he never recovered from his shoulder injury; that he could not stand at parade very well; that he could not flex very high and just dealt with it for years, and; this has always been a problem since. See VBMS, document labeled Hearing Transcript, receipt date 2/22/2024, pages 3-4 of 18. The Veteran is competent to report his right shoulder pain, as well as his continuous right shoulder pain since military service and separation from service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). There is nothing to explicitly contradict the Veteran's reports, nor any intercurrent causes for the current disability; thus, they are credible and competent. Thus, the second element of service connection has been met. In November 2017, the Veteran was afforded a VA medical examination to determine the nature and etiology of his right shoulder disability. The examiner provided a negative nexus medical opinion. The examiner acknowledged the Veteran did sustain an injury to his right shoulder after falling during military service in 1990, and this is documented in the STRs. However, the claims file is silent for any chronic or recurrent treatment between the initial injury in 1990 and 2017, and; there is a 27-year gap between the onset of injury and most recent care for right shoulder. The examiner opined that since there is no chronicity of care, no nexus is established. However, the Board notes that it is not chronicity of care that is the sole determiner of nexus. This opinion relies on the absence of formal treatment for a shoulder disability to conclude negatively. Such lack of objective evidence cannot be the only reason for a negative opinion. Opinions must consider the surrounding facts, to include any lay testimony from the Veteran. In this case, the Veteran specifically testified to having symptoms in his shoulder ever since the original injury. As the examiner did not take these into consideration, the opinion is inadequate. Certain diseases, including arthritis, are considered chronic diseases that will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service; with no intervening cause. 38 U.S.C. §§ 1101, 1113, 1137; Walker v. Shinseki, 708 F.3d. 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.309(a)(3). As previously explained, at the February 2024 hearing, the Veteran testified that his right shoulder never recovered and that it has always been a problem, which is the equivalent to continuity of symptomatology. The Board finds that in this case, the Veteran's consistent and credible lay statements indicating symptoms in service and since separation from service, combined with the diagnosis of arthritis of the right shoulder, are sufficient to establish that the Veteran's right shoulder disability had its onset in service. The Board therefore finds that the competent evidence of record indicates that the Veteran's current right shoulder disability was caused by his in-service right shoulder injury. As such, the Board grants the Veteran's claim. REMANDED Entitlement to a disability rating in excess of 30 percent for left wrist ganglion cyst, status post repair with degenerative arthritis. The Veteran contends his left wrist disability has worsened. During the pendency of the appeal, the Veteran has also been service connected for neuralgia of the left wrist, with a 20 percent disability rating effective September 29, 2017, which is for mild paralysis of all radicular groups affecting the hand. At the September 2024 hearing, the Veteran testified that the symptoms of his left wrist have worsened since his last VA medical examination in 2019. Specifically, the Veteran explained that he has lost range of motion; there is weakness and loss of grip strength; that he uses a brace most of the time for his left wrist; his two fingers- ring and pinky finger- go numb; he cannot write well, because he cannot hold a pencil; that he is typing with only one finger; his wrists get really stiff and becomes more so when he moves; he can barely rotate his wrist, and; there is significant pain if he pushes on it or bumps into it. This indicates the Veteran may experience the functional equivalent of ankylosis in his left wrist. Because an increased rating may be warranted based on the functional equivalent of ankylosis, a remand is required to obtain clarification regarding whether the Veteran's symptoms result in the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Consequently, a remand is warranted for the Veteran to be afforded another medical examination to ascertain the current severity. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current severity of the Veteran's left wrist cyst disability. The entire claims file, to include a copy of this remand, is to be made available to and reviewed by the clinician. The examiner is requested to answer the following: 2. Please opine as to whether the Veteran's left wrist disability amounts to "functional ankylosis," especially in light of the Veteran's reported symptoms. The examiner's attention is invited to the following: See VBMS, document labeled Hearing Transcript, receipt date 9/24/2024 (where the Veteran describes the symptoms of his left wrist). 3. If the examiner opines that the Veteran's symptoms amount to functional ankylosis, please provide an estimated onset date of functional ankylosis, to the extent possible, and whether such functional ankylosis is favorable or unfavorable. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith, 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.