SHOULDER IMPAIRMENT OF

K.A. KENNERLY · 2026 · Case ID: A26027919

MIXED

Summary

The veteran, who served in the U.S. Army from October 1979 to February 1986, appeals the denial of service connection for a right shoulder disability and obstructive sleep apnea (OSA). The veteran contended that his right shoulder condition was secondary to his service-connected lower extremity disabilities, specifically bilateral knees, bilateral hips, and left foot, due to a fall caused by his leg giving out. The Board found the February 2021 VA examination for the shoulder inadequate because it failed to address the veteran's lay assertions about the fall and the potential aggravation of the shoulder injury by his lower extremity issues. A January 2025 private medical opinion, however, found the veteran's lower extremity disabilities caused mobility and balance issues, leading to the fall and subsequent right shoulder disability, concluding it was secondary to the service-connected lower extremity conditions. This private opinion was deemed the most probative evidence, and resolving doubt in the veteran's favor, the Board granted service connection for the right shoulder disability. For the OSA claim, the veteran contended it was secondary to weight gain caused by his service-connected lower extremity disabilities. The Board found the January 2025 private medical opinion, which noted the veteran's obesity and stated that obesity is a significant risk factor for OSA, to be the most probative evidence. The opinion concluded OSA was likely secondary to weight gain from the lower extremity issues, and resolving doubt in the veteran's favor, the Board granted service connection for OSA. The case was remanded for the assignment of an initial disability rating and effective date for the newly service-connected right shoulder disability, as these temporary total evaluation claims were inextricably intertwined with the granted service connection and required further AOJ action.

Rationale

Private medical opinion found shoulder disability secondary to service-connected lower extremity disabilities.; VA examination was inadequate as it failed to address lay assertions and aggravation.; Resolving doubt in veteran's favor, private opinion deemed sufficient for grant.

Service Branch

ARMY

Special Benefit

TEMPORARY TOTAL (§4.30)

Docket No.

210510-158593

Full Decision Text

Citation Nr: A26027919
Decision Date: 03/27/26 Archive Date: 03/27/26

DOCKET NO. 210510-158593
DATE: March 27, 2026

ORDER

Entitlement to service connection for a right shoulder disability, secondary to service connected bilateral knee, bilateral hip, and left foot disabilities, is granted.

Entitlement to service connected obstructive sleep apnea (OSA), secondary to service connected bilateral knee, bilateral hip, and left foot disabilities, and with obesity as an intermediate step, is granted.

REMANDED

Entitlement to a temporary total evaluation for a right shoulder disability because of treatment for a service-connected or other condition subject to compensation is remanded.

Entitlement to a temporary total evaluation because of hospital treatment for a right shoulder disability in excess of 21 days is remanded.

FINDINGS OF FACT

1. The appellant's right shoulder disability is related to his service connected bilateral knee, bilateral hip, and left foot disabilities.

2. The appellant's OSA is related to his service connected bilateral knee, bilateral hip, and left foot disabilities, with obesity as an intermediate step.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served in the United States Army from October 1979 to February 1986.

Procedural History

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2021 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which denied entitlement to service connection for a right shoulder disability, OSA, and denied temporary total disability ratings for a right shoulder disability. The appellant's VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), was received by VA in May 2021. The appellant elected the Hearing docket.

The appellant was scheduled for a hearing before a Veterans Law Judge on October 30, 2024. The appellant withdrew the request for a hearing and requested 90 days to submit evidence. See Correspondence, October 28, 2024.

Applicable Evidentiary Window

As the appellant elected the Hearing docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal, evidence submitted by the appellant or his representative at the Board hearing, to include testimony provided at the hearing; and evidence submitted within 90 days following the Board hearing. 38 C.F.R. § 20.300(a), 302(a). If additional evidence was submitted between the dates of the AOJ decision and the hearing, the Board will not consider it unless it is resubmitted during the 90 days following each of these actions. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023).

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. §§ 1110, 5107; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The three-element test for service connection requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.
U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The three-element test for service connection requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364.

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson reports a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of each veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b). It follows that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to service connection for a right shoulder disability

Appellant's Contentions

The appellant contends that he currently suffers from a right shoulder disability secondary to his service-connected lower extremity disabilities. See VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits, November 16, 2020. Specifically, the appellant contends
, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b). It follows that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to service connection for a right shoulder disability

Appellant's Contentions

The appellant contends that he currently suffers from a right shoulder disability secondary to his service-connected lower extremity disabilities. See VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits, November 16, 2020. Specifically, the appellant contends that he fell and injured his right shoulder as a result of his left leg giving out. See VA Form 21-4183 Statement in Support of Claim, November 16, 2020.

Analysis

The February 2021 rating decision on appeal favorably found that the appellant had a right shoulder disability and that his left knee disability is service connected. See Rating Decision, February 22, 2021. The Board is bound by these favorable findings. See 38 C.F.R. §§ 3.104(c), 20.801(a). As such, the remaining question is whether the appellant's service connected lower extremity disabilities caused or aggravated his right shoulder disability. See 38 C.F.R. § 3.310(a)-(b).

Relevant to this claim, in addition to the left knee disability, the appellant is service connected for a left foot disability, a right knee disability, and bilateral hip disabilities. See Codesheet, February 22, 2021.

With respect to the second element of service connection, that the appellant's service connected lower extremity disabilities caused or aggravated his right shoulder disability, the only competent medical evidence of record is the January 2025 private medical record submitted by the appellant. The January 2025 private medical opinion notes that the appellant's lower extremity disabilities cause serious mobility and balance issues. See Private Medical Opinion of M.M., DNP, CNP, January 22, 2025. The private opinion notes that the appellant's right shoulder condition was caused by a fall and that the fall was likely the result of mobility and balance issues caused by the appellant's left foot, bilateral knee and bilateral hip disabilities. Id. The private opinion concludes that the appellant's right shoulder disability is secondary to his bilateral hips, bilateral knees and left foot disabilities. Id.

The appellant was afforded a VA examination for his right shoulder disability in February 2021 and a disability benefit's questionnaire (DBQ) and medical opinion were prepared. However, the medical opinion is inadequate because it does not address the appellant's contention that he injured his right shoulder in a fall caused by his leg giving out and it does not address any potential aggravation of the appellant's shoulder injury by his lower extremity injuries. See Medical Opinion DBQ, February 10, 2021. An examination which ignores the appellant's lay assertions is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) ("it appears that the medical examiner impermissibly ignored the appellant's lay assertions"); Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) ("The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"). Opinions regarding secondary service connection must address both causation and aggravation. See Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted) (Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain); Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018) ("We reiterate that aggravation of a condition by a service-connected disability is independent of direct causation. The Board must ensure that medical examinations are adequate on that question"). As it is inadequate, the February 2021 VA medical opinion is afforded no probative weight.

The private medical opinion is found to be the most probative evidence of record as to the issue of whether the appellant's right shoulder disability is secondary to his service-connected lower extremity disabilities; there is no competent opinion of record contrary to this positive evidence. Resolving any reasonable doubt in the appellant's favor, the January 2025 private medical opinion is sufficient evidence to show that secondary service connection is warranted for a right shoulder disability.

In sum, the appellant's right shoulder disability was caused by
ation of a condition by a service-connected disability is independent of direct causation. The Board must ensure that medical examinations are adequate on that question"). As it is inadequate, the February 2021 VA medical opinion is afforded no probative weight.

In sum, the appellant's right shoulder disability was caused by service-connected bilateral knee, bilateral hip, and left foot disabilities. As such, the criteria for service connection for a right shoulder disability have been met and, to this extent, the appellant's claim is therefore granted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. Entitlement to service connection for OSA

Appellant's Contentions

The appellant contends that he currently suffers from OSA secondary to his service-connected disabilities. See Appellant's Brief January 24, 2025. Specifically, the appellant contends that his service connected lower extremity disabilities caused him to become obese, which in turn caused or aggravated his OSA. Id.

Applicable Law

Obesity may be an intermediate step in demonstrating entitlement to secondary service connection in cases where a service-connected disability causes or aggravates obesity, which causes or aggravates another disability. See Walsh v. Wilkie, 32 Vet. App. 300 (Vet. App. 2020). "[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

A precedential opinion of VA's General Counsel, VAOPGCPREC 1-2017, explains that while obesity may not be service-connected in and of itself, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). In such cases, the question is whether the service-connected disability caused a veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability.

Analysis

The February 2021 rating decision on appeal favorably found that the appellant had been diagnosed with OSA. See Rating Decision, February 22, 2021. The Board is bound by these favorable findings. See 38 C.F.R. §§ 3.104(c), 20.801(a). As such, the remaining question is whether the appellant's service connected lower extremity disabilities caused or aggravated his OSA. See 38 C.F.R. § 3.310(a)-(b).

The appellant was not afforded a VA examination for his OSA claim.

With respect to the second element of service connection, that the appellant's service connected lower extremity disabilities caused or aggravated his OSA, the only competent medical evidence of record is the January 2025 private medical opinion submitted by the appellant. The January 2025 private medical opinion notes that the appellant is considered obese, with a body mass index (BMI) in excess of 35 since 2017. See Private Medical Opinion from M.M., DNP, CNP, January 22, 2025. The private medical opinion also notes that obesity is probably the most important risk factor for OSA. Id. The private medical opinion concludes that the appellant's OSA is likely secondary to weight gain caused by his service connected lower extremity disabilities which make exercise and movement painful. Id.

The private medical record is found to be the most probative evidence of record as to the issue of whether the appellant's OSA is secondary to his service-connected bilateral hip, bilateral knee, and left foot disabilities; there is no competent opinion of record contrary to this positive evidence. Resolving any reasonable doubt in the appellant's favor, the January 2025 private medical record is sufficient evidence to show that secondary service connection is warranted for OSA.

In sum, the appellant's OSA was caused by weight gain caused by his service-connected bilateral hip, bilateral knee, and left foot disabilities. As such, the criteria for service connection for OSA have been
service connected lower extremity disabilities which make exercise and movement painful. Id.

In sum, the appellant's OSA was caused by weight gain caused by his service-connected bilateral hip, bilateral knee, and left foot disabilities. As such, the criteria for service connection for OSA have been met and, to this extent, the appellant's claim is therefore granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS FOR REMAND

1. Entitlement to a temporary total evaluation for a right shoulder disability because of treatment for a service-connected or other condition subject to compensation

2. Entitlement to a temporary total evaluation because of hospital treatment for a right shoulder disability in excess of 21 days

Upon review, remand is warranted for these claims because they are inextricably intertwined at this time with the service connection claim granted in this decision and for the AOJ to satisfy a statutory duty. See 38 C.F.R. § 20.802(a) ("The Board may remand for correction of any other error by the [AOJ] in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim"); Green v. McDonough, 37 Vet. App. 127, 136 (2024) (discussing that the "[t]he Board also has the discretion" pursuant to the quoted portion of 38 C.F.R. § 20.802(a) to remand).

As addressed above, this decision has granted entitlement to service connection for a right shoulder disability. An initial disability rating and effective date need to be assigned for the newly service-connected disability.

Under these circumstances, it is appropriate for the AOJ to assign in the first instance the initial disability rating and effective date for the newly service-connected right shoulder disability. This action will allow the AOJ to satisfy a statutory duty in that it will preserve the appellant's right to one review on appeal to the Board with respect to the initial disability rating and effective date assigned. See 38 U.S.C. § 7104(a) ("All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board").

This situation is analogous to when the Board, in a legacy decision, reopens a previously denied claim that the AOJ did not. The CAVC has stated that in such circumstances "the matter generally must be returned to the RO for consideration of the merits. This is because the [AOJ] should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by 38 U.S.C. § 7104." See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); see also Smith v. Wilkie, 32 Vet. App. 332, 337 (2020) ("The Board is obligated to ensure that it provides to appellants fair process in the adjudication of their claims" and "even in situations where no particular procedural process is required by statute or regulation, the principle of fair process may nonetheless require additional process if it is implicitly required when viewed 'against [the] underlying concepts of procedural regularity and basic fair play' of the VA benefits adjudicatory system").

In sum, remand is warranted for the appellant's temporary total rating claims because they are inextricably intertwined at this time with the service connection right shoulder disability claim granted in this decision and for the AOJ to satisfy a statutory duty.

Continued on Next Page

The matters are REMANDED for the following action:

1. In light of the grant of service connection, herein, for a right shoulder disability, evaluate the appellant's claims for entitlement to a temporary total evaluation.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Jennifer Sullivan-Brief, 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
at this time with the service connection right shoulder disability claim granted in this decision and for the AOJ to satisfy a statutory duty.

Continued on Next Page

The matters are REMANDED for the following action:

1. In light of the grant of service connection, herein, for a right shoulder disability, evaluate the appellant's claims for entitlement to a temporary total evaluation.

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Jennifer Sullivan-Brief, Associate Counsel

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