SHOULDER IMPAIRMENT OF

A. ISHIZAWAR · 2026 · Case ID: A26035599

MIXED

Summary

The veteran, who served from January 1984 to January 2004, appeals the denial of service connection for neuritis and the reduction of his rating for gout. The Board granted service connection for a right shoulder disorder prior to July 12, 2022, noting a prior favorable finding by the Agency of Original Jurisdiction (AOJ) that was binding on the Board. The Board found the AOJ's October 2022 decision granting service connection for the right shoulder disorder, effective July 12, 2022, was not disturbed, despite procedural issues with the supplemental claim. For neuritis, the Board denied service connection, finding no evidence of a current diagnosis or functional impairment of earning capacity, and noting the veteran's failure to respond to AOJ requests for clarification. The Board also found the veteran incompetent to diagnose neuritis as a layperson. Regarding gout, the Board found the AOJ's proposed reduction from 60 percent to 0 percent was improper due to procedural errors in the notice provided to the veteran. The Board restored the prior 60 percent rating for gout, vacating the erroneous reduction. The claim for service connection for a right hip disorder was remanded for a new VA medical opinion to determine if it is secondary to or aggravated by the service-connected gout.

Rationale

AOJ made favorable finding of direct service connection; Board is bound by AOJ's favorable finding; Nexus established, criteria for service connection met

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210525-162081

Full Decision Text

Citation Nr: A26035599
Decision Date: 04/16/26 Archive Date: 04/16/26

DOCKET NO. 210525-162081
DATE: April 16, 2026

ORDER

Service connection for a right shoulder disorder prior to July 12, 2022, is granted.

Service connection for neuritis is denied.

Restoration of a 60 percent rating for gout, effective June 1, 2021, is granted, subject to the rules and regulations governing the award of monetary benefits.

REMANDED

Entitlement to service connection for a right hip disorder is remanded.

FINDINGS OF FACT

1. At all times relevant to the period on appeal, the Veteran has been diagnosed with a right shoulder disorder.

2. In an October 2022 Rating Decision, the Veteran was awarded service connection for right shoulder labral tear, including SLAP (superior labral anterior-posterior lesion) with glenohumeral joint osteoarthritis, and acromioclavicular glenohumeral, effective July 12, 2022; the Board is bound by the favorable finding that the Veteran's right shoulder disorder is directly related to his military service.

3. The evidence of record persuasively weighs against finding that the Veteran has had a current diagnosis for neuritis, to include symptoms that cause functional impairment of earning capacity, at any time during or approximate to the pendency of the claim.

4. The January 2021 notice of the proposed rating reduction did not include a detailed explanation setting forth all material facts and reasons.

CONCLUSIONS OF LAW

1. The criteria for service connection for a right shoulder disorder prior to July 12, 2022, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for neuritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The reduction in the rating for gout, from 60 percent to 0 percent, effective June 1, 2021, was improper, and the criteria for restoration of the 60 percent rating have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1984 to January 2004.

The rating decisions on appeal were issued in January, March, and April 2021 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The requested hearing was scheduled for November 13, 2024. However, on November 12, 2024, the Veteran, through his attorney, withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the January, March, and April 2021 Agency of Original Jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or his attorney within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of service connection for a right hip disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim.
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Regarding the right shoulder issue on appeal, Board notes that, while this appeal was pending, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim in July 2022 requesting review of the January 2021 rating decision and its denial of service connection for a right shoulder condition. According to 38 C.F.R. § 3.2500(b), a claimant who has filed for administrative review under one of the options available under 38 C.F.R. § 3.2500(a) may not, while that review is pending final adjudication, file for review under a different available option. Despite this, the AOJ accepted the July 2022 supplemental claim and issued a rating decision in October 2022 that granted service connection for a right shoulder disorder, rated 20 percent, effective July 12, 2022. Although the July 2022 supplemental claim was a prohibited concurrent election (as the Veteran had already sought review of the same rating decision by filing the May 2021 VA Form 10182, Notice of Disagreement), the Board will not disturb the award made in the October 2022 rating decision. Moreover, the Board finds that the issue of entitlement to service connection for a right shoulder disorder prior to July 12, 2022, remains on appeal before the Board. See Concepcion-Maldonado v. Collins, 38 Vet. App. 294, 302 (2025) ("mootness if a case-specific inquiry requiring the Court to reckon with the individual circumstances of the appeal and the implications for appellant's ability to obtain full relief.").

In this regard, the October 2022 rating decision stated that service connection for a right shoulder disorder was being granted, effective July 12, 2022, as that was the date VA had received the Veteran's Intent to File (which preceded the July 2022 supplemental claim). However, a review of the claims file shows that January 15, 2021 is the date of the original rating decision that denied service connection for a right shoulder disorder. This rating decision, in turn, was issued in response to a VA Form 21-526EZ, Fully Developed Claim, filed on August 25, 2020, in which the Veteran requested service connection for a right shoulder disorder. The Veteran has been continuously pursuing the right shoulder issue since that time. 38 C.F.R. § 3.2500(c).

Finally, in the Veteran's May 2021 VA Form 10182, Notice of Disagreement, he requested to appeal the March 2021 rating decision as it related to his ribs, which he contended were cut during a right nephrectomy during service. The March 2021 rating decision denied service connection for a right hip disorder and neuritis. The Board has thus liberally construed this appeal request to be a disagreement with the denial of service connection for neuritis. See 38 C.F.R. § 20.202(a).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

With any claim for service connection, it is necessary for
. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition.

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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

1. Entitlement to service connection for a right shoulder disorder.

The relevant evidence of record consists of a December 2020 VA examination and VA treatment records reflecting diagnoses for right shoulder disorders. In an October 2022 rating decision, the Veteran was granted service connection for a right shoulder disorder.

In the October 2022 rating decision, the AOJ made a favorable finding that the Veteran's right shoulder disorder was directly related to his military service and awarded service connection for a right shoulder disorder, effective July 12, 2022. The Board is bound by the AOJ's October 2022 favorable finding. Favorable findings made by the AOJ are generally binding on the Board, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. 38 U.S.C. § 5104A; 38 C.F.R. §§ 3.104(c); 20.801(a). Such evidence is not present in this case.

Based on the foregoing, the Board finds that a nexus has been established and the criteria for service connection for a right shoulder disorder have been met. Accordingly, the Veteran's claim of service connection for a right shoulder disorder prior to July 12, 2022, is granted.

2. Entitlement to service connection for neuritis.

The Veteran filed a claim for service connection for neuritis. See August 2020 Fully Developed Claim. As indicated above, however, service connection requires medical evidence of a current disability to establish a claim for service connection. Nevertheless, the Veteran's treatment records are silent for any current symptoms or diagnoses for a neuritis condition, and the pre-decisional record does not reflect the Veteran's reports of any affected body part, to include any disabling effects that cause functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (Fed. Cir. 2018).

Accordingly, there is no evidence to show a current diagnosis, and the competent and credible evidence of record does not suggest that the Veteran has a current diagnosis for neuritis. See Brammer, 3 Vet. App. at 223.

The Board has specifically considered the Veteran's claim for service connection for neuritis. However, the Veteran has not contended, and the evidence does not otherwise show that any neuritis condition causes functional impairment of earning capacity. As such, the evidence does not establish that the Veteran had a neuritis condition that caused functional impairment of earning capacity to constitute a disability for VA purposes. See Saunders, 886 F. 3d at 1356

To the extent the
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To the extent the Veteran's general claim for service connection for his neuritis implies that he has current diagnoses, the Board finds that he is not competent as a lay person to attest to such a diagnosis. A lay person may be able to testify to symptoms he or she experiences and can describe, but diagnosing those symptoms requires specialized medical education and the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

In reaching the above determination, the Board acknowledges that the Veteran has not been provided a VA examination in this matter. VA does not have a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, VA's obligation to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the evidence for consideration does not contain a diagnosis of chronic disability manifested by neuritis.

The Board highlights that given the vagueness of the Veteran's general claim for neuritis, the AOJ sought clarification regarding which body part was affected by his claim for neuritis. See February 2021 Subsequent Development Letter. However, the Veteran and his attorney provided no response to this request. The Board emphasizes that the duty to assist is not a one-way street and the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board is satisfied with the development in this case.

The Board further acknowledges that, in the May 2021 VA Form 10182, the Veteran contended that his neuritis was related to his rib injury during a 1992 right nephrectomy. Under the AMA, the Board has no duty to assist, and the Board may only remand for correction of an error on the part of the AOJ to satisfy its duty to assist where the error occurred prior to the date of the AOJ decision on appeal. 38 C.F.R. § 20.802. The Veteran's contention as it relates to a rib injury was submitted after the March 2021 AOJ decision and not raised by the Veteran or the record prior to that decision. Therefore, the Board is unable to find duty to assist error based on this contention.

In conclusion, the Board finds that the weight of the evidence is against a finding that the Veteran has a current diagnosis for neuritis to support his claim for service connection. In the absence of proof of a current disability for which service connection may be granted, there is no valid claim. See Brammer, 3 Vet. App. at 225. Accordingly, the claim for service connection for neuritis must be denied.

3. The propriety of the rating reduction from 60 percent to 0 percent rating for a gout, effective June 1, 2021.

In any case involving a rating reduction, the fact finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13).

The provisions of 38 C.F.R. § 3.105(e) allow
based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13).

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The AOJ must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. §§ 3.105(e), (i)(2)(i).

When a rating decision does not comply with the provisions of applicable VA regulations, such reduction is void ab initio (from its inception) and the rating prior to the reduction will be restored. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

By way of background, in a February 2018 rating decision, the AOJ awarded a higher 60 percent rating for the Veteran's gout, effective December 29, 2016. In August 2020, the Veteran filed a VA Form 21-526EZ, Fully Developed Claim, that the AOJ construed as a claim to reconsider the rating for gout. In a January 2021 rating decision, the AOJ proposed to reduce the rating from 60 percent to 0 percent. The proposed reduction notice informed the Veteran that the AOJ was proposing to assign a noncompensable evaluation for gout because the Veteran did not have any exacerbations. The reduction was finalized in the April 2021 rating decision on appeal, which reduced the rating for gout from 60 percent to 0 percent, effective June 1, 2021. This decision also explained that the January 2021 rating decision proposed to assign a noncompensable evaluation for gout had been incorrect and the evaluation for gout was based on limitation of motion of separate parts.

Based on the foregoing, the Board finds that the proposed reduction notice provided to the Veteran in January 2021 was insufficient and did not comply with requirements under 38 C.F.R. § 3.105(e). Namely, the AOJ admitted in the April 2021 rating decision, that the January 2021 proposed reduction was based on the incorrect rating criteria. Therefore, the proposed reduction did not provide a detailed explanation of all material facts and reasons for the contemplated action.

Accordingly, the Board finds that the AOJ failed to observe the applicable laws and regulations in reducing the disability rating assigned for the Veteran's service-connected gout from 60 percent to 0 percent, effective June 1, 2021. Therefore, where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. To this extent, the appeal is granted.

REASONS FOR REMAND

1. Entitlement to service connection for a right hip disorder is remanded.

The record reflects that the Veteran has a diagnosis for right hip arthritis. See April 2020 VA Treatment records. The Veteran is also service connected for gout that affects multiple joints. The Board notes that, while the Veteran was provided a VA medical opinion to address direct service connection, no VA medical opinion has been procured to address whether the Veteran's right hip disorder is related to his service-connected gout. The Board finds that the evidence of record is sufficient to trigger VA's duty to assist to provide a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, there was a pre-decisional duty to assist error in not obtaining a VA medical opinion to address secondary service connection and remand is warranted for a new VA medical opinion consistent with the directives herein.

The matter is REMANDED for the following action:

Obtain a VA medical opinion from an
that, while the Veteran was provided a VA medical opinion to address direct service connection, no VA medical opinion has been procured to address whether the Veteran's right hip disorder is related to his service-connected gout. The Board finds that the evidence of record is sufficient to trigger VA's duty to assist to provide a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, there was a pre-decisional duty to assist error in not obtaining a VA medical opinion to address secondary service connection and remand is warranted for a new VA medical opinion consistent with the directives herein.

The matter is REMANDED for the following action:

Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran right hip disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner.

The examiner should opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right hip disorder is caused or aggravated by his service-connected gout. The examiner is advised additionally that aggravation in this context is defined as any increase in disability.

A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Metzner, Paul

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.

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