Citation Nr: 1003599 Decision Date: 01/25/10 Archive Date: 02/01/10 DOCKET NO. 04-26 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral shoulder disability. 2. Entitlement to service connection for bilateral hip disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION This appeal to the Board of Veterans Appeals (the Board) is from action taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, in October 2002. Actions have been taken by the VARO during the course of the appeal which, in pertinent part, have resulted in service connection being currently in effect for post-traumatic migraine headaches, evaluated as 30 percent disabling; disability of the cervical spine, traumatic contusion, with muscle spasm, evaluated as 20 percent disabling; disability of the lumbar spine, sacroiliac joint dysfunction, right, evaluated as 20 percent disabling; disability of the thoracic spine, traumatic contusion, with muscle spasms, rated as 10 percent disabling; and history of right sacral plexus neuropraxia, and numbness in medial arch, right foot, rated as noncompensably disabling. During the course of the current appeal, the Veteran has also raised the issue of entitlement to service connection for posttraumatic stress disorder (PTSD); and while the Veteran clearly intends to pursue that claim, the issue has not yet been fully perfected and accordingly, it is not part of the current appeal. The Veteran and his spouse provided testimony before the undersigned at a videoconference hearing in February 2007; a transcript is of record. Transcript. The Board remanded the issues shown on the front page of this decision in June 2007 for development to include specified examinations and medical opinions which are now of record. In the interim since the case was remanded by the Board and even since it has been returned to the Board for further appellate action, it is noted that a variety of packets of correspondence from VA to the Veteran have been returned as having been undeliverable. The exact nature of this problem is unclear. Nonetheless, the Board finds that it is appropriate to expeditiously address the issues at hand without further delay. FINDINGS OF FACT 1. With resolution of doubt, the aggregate evidence of record including competent medical opinions is in relative equipoise as to whether the Veteran has a bilateral shoulder disability which is either due to an inservice HUMVEE accident and/or is not dissociable from his other already service-connected disabilities. 2. With resolution of doubt, the aggregate evidence of record including competent medical opinions is in relative equipoise as to whether the Veteran has a bilateral hip disability which is either due to an inservice HUMVEE accident and/or is not dissociable from his other already service-connected disabilities. CONCLUSIONS OF LAW 1. A bilateral shoulder disability is either the result of service and/or is associated with other service-connected disabilities. 38 U.S.C.A. §§ 1110, 1113, 1131, 5013, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.202, 3.304, 3.310 (2009). 2. A bilateral hip disability is either the result of service and/or is associated with other service-connected disabilities. 38 U.S.C.A. §§ 1110, 1113, 1131, 5013, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.202, 3.304, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.326(a) (2008). Given the grants herein, additional discussion of those procedures is unnecessary II. Pertinent Criteria Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, certain diseases may be subject to service connection based on presumed incurrence in service if manifested to a compensable degree within one year subsequent to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted where the evidence shows that a chronic disability has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition, will be service connected. The Board notes that 38 C.F.R. § 3.310 was amended during the pendency of this claim and appeal. See 71 Fed. Reg. 52,744 (Sept. 7, 2006), now codified at 38 C.F.R. § 3.310(b) (2009). Under the revisions, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically, in terms of establishing a baseline level of disability for the nonservice-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal was already pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed inservice injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, 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 a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1991). In this, as in any other case, it remains the duty of the Board as the fact finder to determine credibility in any number of contexts, whether it has to do with testimony or other lay or other evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). In general, lay individuals may not render medical conclusions, see Espiritu v. Derwinski, 2 Vet. App. 492 (1992); however, a lay statement may be made which relates the visible symptoms of a disease or disability or the facts of observed situations or circumstances, see Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991), after which a decision must be made as to the credibility thereof in the context of probative medical evidence. More recently, the U.S. Court of Appeals for the Federal Circuit held, in Buchanan v. Nicholson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006), that the Board is obligated to, and fully justified in, determining whether lay testimony is credible in and of itself, and that the Board may weigh the absence of contemporary medical evidence against lay statements. The Board is not permitted to reach medical determinations without considering independent medical evidence to support its findings, and must cite to competent evidence of record to support such conclusions. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991), and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Lay statements may be competent to support a claim as to lay-observable events or lay-observable disability or symptoms. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, supra. The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence," Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), and has also held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As applicable to the present case, it must be reiterated that, while the appellant is competent to offer statements of first-hand knowledge that he experienced certain observable symptoms or that the symptoms were seemingly chronic and ongoing, as a lay person the Veteran is not competent to render a probative opinion on a medical matter, such as the time of onset of the claimed disability or of its medical diagnosis or causation. See Espiritu, supra; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has an obligation to provide adequate reasons and bases supporting this decision, but there is no requirement that every item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. The Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Factual Background and Analysis The Veteran had active Army service from April 1998 to August 2001 during which time he was involved in a rollover HUMVEE accident while on an exercise which was part of OPERATION TASK FORCE HAWK in Albania in 1999. As noted in the prior Board remand, the Veteran's service records and the comprehensive report of his Medical Evaluation Board (MEB) reflect that after the accident, he had significant pain; and along with ecchymosis in the right thigh, he had numbness and tingling in the right thigh. One of several right hip x-rays showed a question of a non-(or minimally) displaced sacrococcygeal fracture versus normal variant. He was found to have some diminution of nerve response. Throughout, while he clearly was functionally impaired, there were questions as to which symptoms were orthopedic and which were neurological. It remains unclear the extent to which comprehensive evaluations were undertaken, but throughout, he had symptoms in both hips and shoulder areas. A VA examination in June 2002 was limited due to the lack of orthopedic specialists available and thus the findings were inconclusive. A right hip X-ray was said to be normal although there was apparent widening of the right sacroiliac joint with possible sclerosis along the iliac side; a unilateral inflammatory process could not be excluded. Other X-rays showed straightening of the normal cervical lordosis and scoliosis of the cervical spine with convexity to the right. The examiner opined that the Veteran had lost 40-50% of the range of motion, strength, coordination and fatigability in the right leg due to the sacroiliac joint widening and low back pain associated with that and the muscle spasms as well. In the cervical area, he had lost 20% of similar functions due to muscle spasms. In the right shoulder, he had lost an additional 20% of range of motion of the entire shoulder girdle for flexion, extension, internal and external rotation, abduction and horizontal flexion. On follow-up VA examination in August 2002, the Veteran's primary complaints related to pain, to include the shoulders and both hips. However, while noting that he had symptoms associated with other identified problems, the examiner found no specific injuries and/or definitive abnormalities of either his hips or shoulders. And while the examiner felt that there might not be other or separate disability of hips or shoulders, the symptoms were "definitely due to traumatic contusions in the rollover. It looks like his spine was contused and knocked out of alignment, resulting in a malignment and muscle spasms that have not resolved". VA outpatient treatment records reflect that the Veteran had been treated symptomatically. In September 2003, when he was having increased neck problems, the clinical record noted that he had "early ankylosing spondylitis". However, in October 2003, the Veteran reported that his rheumatologist had said that he did not now have confirmed ankylosing spondylitis. In February 2004, the Veteran was evaluated by a VA orthopedic surgeon who felt that symptoms in both hips and shoulders were probably not due to the inservice injury, though he suggested that a rheumatologist assess the situation. A report of a VA examination in March 2004 showed no confirmation of ankylosing spondylitis. HLA-B27 was negative, but the Veteran's sedimentation rate was slightly elevated. The aforecited reports were returned to the VA examiners for a specific opinion as to what was causing the Veteran's shoulder and hip problems. The response as the result of an April 2004 reassessment was that the symptoms were not orthopedic, and were unrelated to any service-connected disability. However, no alternative cause for either was delineated on either an organic or nonorganic basis. Since then, the available VA outpatient records show ongoing care for pain and movement limitations involving one or both of the Veteran's shoulders and hips. At the hearing, the appellant and his wife testified that they observed that the Veteran's hip and shoulder pains were not concurrent with the problems in his other service- connected areas, and thus would appear to be separate entities. Tr. at 3. The Veteran reported that he remained under the care of the VA rheumatologist, and that he had had recent (January or February 2007) computerized axial tomography (CAT) scans and magnetic resonance imaging (MRI). Tr. at 4, 7-8. He said that the rheumatologist thought the shoulder and hip problems were due to the inservice accident, but if they ruled out orthopedic causes, there remained uncertainty as to whether they were neurological in nature. Tr. at 4-5. He felt that he could get them to put the assessment in writing, but that if there simply had been a misdiagnosis, he wanted to get it fixed so he could start treatment in the right direction. Tr. at 5-6. He said as to recent specialized studies, he had not been informed of the results, so he did not know if there was now a separate diagnosis relating to his hips or shoulders. Tr. at 9. Again, as noted in the earlier remand action, the Board recognized that considerable effort has been made by VA, both medically and administratively, over the period this appeal had been pending, to determine the proper diagnosis for and basic nature of the Veteran's hip and shoulder problems. In June 2007, the Board remanded the case for the acquisition of all pertinent VA and other inpatient or outpatient treatment records, to include copies of all up-to-date X- rays, CAT and MRI scans. The Veteran was then to be scheduled for coordinated VA examinations by specialists in neurology, rheumatology (or immunology, if available), psychiatry and orthopedics in order to determine the exact nature and extent of his current hip and shoulder disabilities, if determinable. All necessary laboratory and other testing was to be accomplished including RA(RF), CBC with differential, and sedimentation rates, [as well as X- rays, CAT scans, and MRI's of both hips and both shoulders if no recent studies were available]. The examiners were to review the entire file and opine as to (a) what were the correct diagnoses of current hip and shoulder disabilities; (b) to what were the Veteran's hip and shoulder symptoms at least as likely as not all or in part attributable; (c) were the current hip and shoulder complaints at least as likely as not all or in part due to the inservice HUMVEE incident; (d) were the current symptoms at least as likely as not all or in part in any way associated with other service-connected disabilities, in which case, what symptoms and to what extent. (e) If diagnosis(es) is/are not determinable, this should be clarified; with an assessment in each case as to (f) whether it was as likely as not that the disabilities had any organic and/or have psychological facets, and (g) whether they reflect any probable systemic and/or autoimmune component, and if so, what type and how that was determined. The opinions were to be carefully explained and the conclusions annotated to the files to the extent possible. Since then, extensive VA treatment records have been obtained and are now in the file. These records were also in the file when the case was turned over to medical specialists for their review and associated opinions. For the most part, although there are reports of specialized testing therein, and the Veteran continued to be treated symptomatically, the conclusions reached as to the hip and shoulder complaints were still not definitive. A rheumatology evaluation dated in July 2009 is of record. It was noted that as a result of the inservice accident, the Veteran had had pain in the cervical and low back regions with daily stiffness and pain. Any increased use of the shoulders, walking, bending forward, lifting or any other specific activity requiring muscle use of the axial skeleton caused pain throughout the lumbar and posterior hip region and ascending to the posterior scapular region. The Veteran said that he had previously been working as an office employee for railroad staffing but that he had discontinued work because of increasing pain in the fall of 2008. The Veteran reported that he is currently seen at a pain clinic for his symptoms, and is using morphine as well as muscle relaxants. He had previously used cyclobenzaprine without much benefit, but was now using tizanidine with some relief of stiffness. He said that increasing pain and stiffness with any use would cause increasing spasms in the muscles of the posterior lumbar region and then this would require a period of rest until the muscle spasms abated. The examining rheumatologist noted that he had seen the Veteran for about 5 years and treated him on the presumed basis of early spondylitis based on the nature of the symptoms and the efficacy of certain medications. The clinical findings were noted in detail including of the shoulders and hips. MRI showed suspect sacroiliitis and X-rays confirmed the multiple site degenerative changes. Discussing the various possibilities, the examiner opined that: It is more likely than not that this patient has sacroillitis and probable ankylosing spondylitis that can also be termed "undifferentiated spondyloarthropathy," essentially a clinical pattern that is not completely confirmed by radiographs and additional imaging, but is similar to clinical features of ankylosing spondylitis. No other associated spondylitis such as psoriatic arthritis with back involvement is found. It is more likely than not that the cervical, thoracic and lumbar paravertebral pain, stiffness and marked reduced motion are part of ankylosing spondylitis manifestations. It is just as likely as not that the hip and shoulder pain with motion and use and at rest are related as inflammatory arthritis components to the above diagnosis of probable ankylosing spondylitis or undifferentiated spondyloarthropthy, although as stated, the typical radiographic features are not present in the spine. Some signs of impingement with use are present in bilateral shoulders and orthopedic evaluation is pending and will add more details to the hip and shoulder diagnostic opinion. It is more likely than not that the above axial skeleton-cervical, thoracic, lumbar diagnosis and hip and shoulder disorders are a result of initial trauma sustained in the military based on timing and chronic pain since the event and medical and rheumatologic literature that can support trauma as a precipitant of the symptom onset of inflammatory arthritis of the spine such as sacroiliitis. The examiner ordered some further tests to assess the findings of bone edema and increased uptake. Another examiner was asked to assess whether the hip and shoulder problems were separate and apart from and/or part of the already service-connected back disabilities. After evaluating the file, [and specifically excepting any rheumatology assessment as to the possibility of possible ankylosing spondylitis], he opined that the Veteran's symptoms (of hip and shoulders) correlated more with muscle spasms across the spine for which he already had service- connection. A MRI assessment of the pelvis was done in July-August 2009 and was read as showing no "convincing" evidence of sacroiliitis. However, the report itself showed a gross bone marrow signal with a mild patchy endplate corner at T-1 and T-2 hyperintensity which was felt to be possibly related to degenerative change versus early ankylosis, given their distribution. There was mild disc dessication at L-1/L-2 and L-5/S-1 with ventral disc protrusion at the higher level; and mild diffuse disc bulge and facet arthropathy with flattening of the anterior aspect of the dural sac and the lower level but without significant spinal canal or neural foraminal stenosis. Finally, there was the stable patchy increased signal in the corners of multiple vertebral bodies which was felt to possibly relate to degenerative change or early ankylosis. Additional studies at the thoracic level showed decreased uptake in the sacroiliac region, bilaterally, when compared to the prior study as well as a focal tracer uptake superior to the right orbit. The radiologist noted that since these findings were suggestive for ankylosing spondylitis, a follow-up study in a year would be recommended. The Board has reviewed all of the aggregate evidence as well as the multitude of medical evaluations. From the start, it has been clear that this was a difficult case, but nonetheless, the Veteran has identifiable and definitive symptoms involving both hips and both shoulders which have required assessment. It appears that he has progressive symptoms, and if one waited long enough, further testing might well confirm the specifics of what he is thought to have. However, waiting another year for a repetition of a given test when results are now feasible, responsible and probative albeit inconclusive and equivocal, is both unnecessary and ill conceived. In this case, even with all of the specialized testing that has been undertaken, it appears that the Veteran does not have all of the particular and precise clinical findings which might provide an unequivocal response as to spondylitis, an often acknowledged somewhat elusive diagnosis. However, that does not minimize his problems, nor the fact that he is entitled to service-connection for them if they are due to service on any premise. Service connection is already in effect for post-traumatic migraine headaches, disability of the cervical spine, traumatic contusion, with muscle spasm, disability of the lumbar spine, with sacroiliac joint dysfunction, right, disability of the thoracic spine, traumatic contusion, with muscle spasms, and history of right sacral plexus neuropraxia, and numbness in the medial arch, right foot. The current pending appellate claim relates to disability involving both hips and both shoulders. In this regard, the Board is mindful of the many X-rays , CT scans and MRI's of record and the assessments associated therewith. All in all, there is now a satisfactory, credible two-fold resolution to the issues herein concerned, namely that (a) the Veteran has symptomatic bilateral shoulder and hip problems which cannot be dissociated from his already service-connected problems, and/or (b) he may also have what is probable early ankylosing spondylitis or undifferentiated spondyloarthropthy. It has been shown on numerous prior occasions, and medical experts have opined, that the Veteran's shoulder and hip symptoms often cannot be dissociated from the multiple problems involving those anatomical areas already service- connected. However, he also has something more than that, a presumed spondyloarthropathy for want of a better term, a conclusion that has been the premise for his care over the past 5 years, and on which his treating rheumatologist has based his recent credible and eminently persuasive opinion. In either instance, a doubt is raised as to the hip and shoulder disabilities being attributable to service on one or another premise, and this must be resolved in his favor. Service connection is warranted for bilateral hip and shoulder disabilities. Parenthetically, it is also noted that the specific nature of rating these and any other already service-connected disabilities is not within the legal purview of the Board at this time. ORDER Service connection for bilateral shoulder disability is granted. Service connection for bilateral hip disability is granted. ____________________________________________ S. F. SYLVESTER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs