Citation Nr: 1237509 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-24 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a left shoulder disorder, to include as secondary to a low back disorder. 2. Entitlement to service connection for a right shoulder disorder, to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his wife and his daughter ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the entire matter was retained by the Oakland RO throughout the course of the appeal. In May 2009, the Veteran and his wife testified at a RO hearing before a Decision Review Officer (DRO). In May 2010, the Veteran, his wife, and daughter testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. Transcripts of both hearings are of record. The Board most recently remanded this matter in May 2012 for further development. Recent VA treatment records dated from January 2011 to July 2012 are found on the Veteran's Virtual VA "eFolder" and were considered in the August 2012 Supplemental Statement of the Case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). (CONTINUED NEXT PAGE) FINDINGS OF FACT 1. The Veteran's current left shoulder disorder had its onset in service or is otherwise etiologically related to an injury that occurred during his active service. 2. The Veteran's current right shoulder disorder had its onset in service or is otherwise etiologically related to an injury that occurred during his active service. CONCLUSIONS OF LAW 1. A left shoulder disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 2. A right shoulder disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was notified of the provisions of the VCAA by the RO in correspondence dated in September 2007. This letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claims, identified the Veteran's duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA. Nevertheless, in light of the favorable disposition of the Veteran's service connection claims, there is no prejudice to the appellant in proceeding to adjudication under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). II. Service Connection The Veteran seeks service connection for a bilateral shoulder disorder. He contends he injured both his left and right shoulders when he fell in a ditch during a march on maneuvers while stationed in Germany or, in the alternative, that each should be considered secondary to his service-connected low back disorder. He additionally argues that his shoulder disorders were caused by carrying heavy packs, equipment, and weapons in service. The Board notes that most of the Veteran's service treatment records have been determined to have been destroyed in a fire at the National Personnel Records Center and are unable to be reconstructed. See February 2004 RO inquiry and response. The Board acknowledges that VA has a heightened duty to assist the Veteran in developing his claims since the records were lost in a fire. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46, 51 (1996). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 38 C.F.R. § 3.310(b). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The few available service treatment records do not show any injury to either shoulder. The Veteran's March 1955 separation examination noted a normal clinical evaluation of his upper extremities. Post-service treatment records first noted complaints of shoulder pain in March 1981. A private treatment record at that time noted that the Veteran performed janitorial work. A "Doctor's First Report of Occupational Injury or Illness" completed shortly thereafter indicated that the Veteran had been bending over to lift a heavy trash barrel and now had subjective complaints of head, neck, and left shoulder and arm pain. The physician noted that the Veteran had originally not reported his injury as industrial. A March 1981 private medical record noted right shoulder and arm pain. Private medical records in 1981 noted subsequent treatment for both left and right shoulder pain and that the Veteran returned to work in June 1981. A February 1988 private medical record noted a referral to physical therapy for pain in shoulders. A March 1988 private medical record noted pain in shoulder and physical therapy for the cervical spine billed to worker's compensation. A June 1988 physician's report for worker's compensation noted that the Veteran had received physical therapy in March and that he had been off work for three to four months. His left arm still ached as did his left shoulder. A June 1994 private medical record noted that the Veteran's left shoulder and arm ached and that the Veteran had a history of degenerative joint disease of the lumbosacral spine. A May 1997 private medical record noted a long term problem concerning a pinched nerve in the left shoulder. The Veteran underwent a VA examination of the back and neck in June 1997. The Veteran told the examiner that he carried a heavy rifle on his left shoulder in service and remembered falling carrying this weapon. He did not complain of any muscle injury but did complain of pain in the muscles in the left upper back, scapular area. He said that he had this dull, chronic pain for many, many years back to when he carried the rifle in service. Tenderness on palpation to the left upper trapezius was noted and the middle trapezius of the medial scapular border. Diagnosis was left trapezius muscle strain. An August 1997 private medical record showed complaint of left shoulder pain. An April 2001 private emergency room record noted that the Veteran complained of frequent left shoulder, arm, and chest pain. A May 2004 VA medical record noted the Veteran's complaint of left shoulder pain for many years starting approximately 50 years before while on active duty. The report of a May 2004 evaluation by a private chiropractor, Dr. L.S., noted that the Veteran described his service fall, including that he was sent to the base hospital for three to four days afterwards where he received some type of spinal injection. He denied any motor vehicle accidents, broken bones, or any significant trauma during his lifetime but for the inservice fall. He also told Dr. L.S. that after service he worked for five years on a railroad building tracks but was in constant pain, then he worked for three years in a shipyard. For 20 years he worked at General Motors. In approximately 1974, Dr. L.S. said that the Veteran's pain began to radiate up the left side of his spine to his neck and under his shoulder. On examination, upper trapezius, levator scapula, pectoralis, and quadratus lumborum hyper tonicity was noted. Dr. L.S. stated that due to extensive degenerative changes seen in X-ray studies and the absence of any other known trauma in the Veteran's life, it was his professional opinion that the cause of these changes was more likely than not the trauma suffered during his inservice march and fall. He said this was consistent with a long-standing injury and the extent of degenerative changes begun several decades ago. A July 2004 VA medical record noted the Veteran's complaint of left shoulder pain which started approximately one month before. The Veteran told the examiner that his pain had been present intermittently since his initial injury 50 years ago in service. A July 2004 X-ray study of the left shoulder at a VA facility showed a normal shoulder. A February 2005 VA medical record noted complaint of intermittent left shoulder pain and a negative X-ray report last summer. A September 2005 VA clinic record noted that the Veteran had been treated for diffuse osteoarthritis in the cervical spine and left shoulder as well as the lumbar spine. He was referred to physical therapy. An October 2005 report from P.P., D.C., a chiropractor at Emeryville Chiropractic, noted that the Veteran currently suffered from low back, neck, and shoulder pain. Dr. P.P. reviewed copies of service records and VA treatment records provided by the Veteran. He noted that the Veteran fell in a five- to six-foot hole in service in 1953 when he hurt his low back and neck. Due to severity of pain and discomfort the Veteran attended a field hospital and then was hospitalized. He was finally released to full service duties without any restrictions. Dr. P.P. noted that the Veteran took pain killers since 1953, that he started experiencing shoulder pain shortly after falling in the hole in service, and that reading or sitting would aggravate his shoulder and neck. Dr. P.P. opined that the primary cause of the Veteran's neck and low back pain was as a direct result of the fall in service, but made no similar statement about the Veteran's left or right shoulder. In an October 2006 VA clinic visit the Veteran told the examiner that he had bursitis in his left shoulder during service. He complained of posterior shoulder pain and right posterior inferior shoulder pain. A January 2007 VA medical record noted the Veteran's long-standing complaint of severe left shoulder pain. It was noted that he had benefitted from an injection by the rheumatology clinic and had received acupuncture treatment in 2005. He was referred to the pain clinic for follow-up. A March 2007 VA pain clinic record noted that the Veteran began having problems with neck and left shoulder pain about 35 years before, or approximately 1972. An old history of injury to the left shoulder was noted. On examination, tenderness was noted in the left acromioclavicular (AC) joint area and range of motion of the left shoulder was about 90 percent of normal. Impression was left shoulder pain. A March 2007 X-ray study of the shoulders at a VA facility showed the left shoulder was stable and unchanged since July 2004 while the right shoulder showed minimal degenerative joint disease. A November 2007 VA medical record noted full range of motion of the right shoulder with minimal discomfort at extremes of position. A June 2008 statement by a VA staff nurse has been associated with the claims file. In it, she noted a diagnosis of left supraspinatus tendonitis. She indicated that the Veteran had told her that his left shoulder pain and lower back pain began after falls in service. He also told her that he was told during service that he had left shoulder bursitis as a result of the falls. The VA staff nurse concluded that his persistent left shoulder pain was as likely as not the result of his injuries during service. An August 2008 VA medical record revealed that the Veteran had physical therapy for his left shoulder, neck and back pain. A September 2008 X-ray study of the left shoulder at a VA facility showed no fracture or dislocation and no significant change when compared to a prior study in March 2007. Dr. I.C.R., one of the Veteran's treating physicians at VA, submitted a signed statement in December 2008 that is nearly identical to the June 2008 statement of the VA staff nurse. She noted a diagnosis of left shoulder supraspinatus tendonitis. She indicated that the Veteran had told her that his lower back pain started in service after physical falls, and from carrying heavy field packs and loading trucks and aircraft. She noted that the Veteran told her that his left shoulder pain and lower back pain began after these falls and heavy lifting. He also told her that he was told during service that he had left shoulder bursitis as a result of the falls. Dr. I.C.R. concluded that his persistent left shoulder pain was at least as likely as not the direct result of his duties during service. During his May 2009 RO hearing, the Veteran testified that while in service he was a rifleman and a gunner. See transcript at p. 16. His unit was marching late at night during cold weather indoctrination or maneuvers when a couple of the soldiers fell into a washout or ditch and he got hurt. He said that he was wearing a full field pack that weighed about 90 pounds. They were put on a truck and taken to a field dispensary. Id. at pp. 2-3. He also testified that post-service a private provider treated him for a pinched nerve from his back that went up into his shoulder, which still bothered him. He said his shoulder "jumps" constantly and his representative noted for the record that the Veteran was twitching both shoulders when he listened to his wife testify. Id. at pp. 7-8. The Veteran testified that he believed his right and left shoulder arthritis was caused by service because he had to carry heavy packs, equipment, and weapons. He said that the right shoulder was not as bad as his left shoulder, but that his left shoulder gave him constant pain every day. Id. at pp. 23-24. A February 2010 X-ray study of the left shoulder at a VA facility showed very minimal degenerative changes. During his May 2010 Board hearing, the Veteran testified that he injured his back during a cold weather speed march or forced march when he and several others went over into a ditch at the side of the road. See transcript of hearing at p. 4. He said that he injured his shoulders from that same fall in service. Id. at 11. The Veteran also testified that a doctor told him his shoulder disorders are related to his period of active duty. Id. at 12. A January 2011 VA medical record revealed a physical examination of the bilateral shoulders. The subacromial space was noted as non-tender. An Apley scratch test indicated normal range of motion with reaching behind the head and back and other tests were performed without discomfort. The Veteran underwent a VA examination in March 2011. The VA examiner reviewed the claims file and noted that the Veteran fell into a hole and injured his lower back while deployed to Germany during a forced march while on night maneuvers. He was hospitalized for three to four days and placed on bedrest with traction. Regarding his left shoulder, the Veteran complained of chronic left shoulder pain since the inservice fall into the hole and said that over the years the pain has worsened. There was no history of dislocation and he could not recall any other injury to the left shoulder. Regarding his right shoulder, the Veteran complained of right shoulder pain since the inservice fall into the hole, that he had no new injury to the right shoulder that he could remember, and that the right shoulder, like the left, also cracks and pops. On physical examination, it was noted that the Veteran was right hand dominant and walked slowly with a cane and limped because of his back and knees. The shoulders showed no swelling, no effusion, and negative impingement tests. There was slight tenderness with palpation of the right shoulder AC joint and tenderness to palpation of the left shoulder AC joint and the posterior left shoulder. Diagnosis was minimal degenerative arthritis of each shoulder. The March 2011 VA examiner opined that the left shoulder mild degenerative arthritis was not caused by the Veteran's fall into a ditch during active duty as the arthritis findings were not significant and she would have expected a more severe degenerative arthritis if the left shoulder disorder would have started more than 50 years ago during the inservice fall. She also opined that the left shoulder disorder was most likely caused by overuse of the left shoulder and not by the Veteran's service-connected lumbar spine degenerative arthritis. The VA examiner also opined that the Veteran's right shoulder degenerative arthritis was very mild and not caused by his inservice fall or injury. She explained that the degenerative arthritis if traumatic from that fall would have been more significant and it was most likely that the current right shoulder disorder was the result of normal aging wear and tear as well as overuse. She also opined that the Veteran's right shoulder disorder was not caused or aggravated by his service-connected low back disability because the mild degenerative arthritis of the shoulder was caused by normal wear and tear and overuse and not by lumbar spine degenerative arthritis. As noted in the May 2012 remand, the March 2011 VA examiner had reported that the Veteran received Supplemental Security Income (SSI) benefits from the Social Security Administration (SSA) because of his left shoulder disorder. On remand, the RO attempted to obtain SSA records but was informed they had been destroyed. The Board notes that the RO made a formal finding of the unavailability of these SSA records in July 2012. Recent VA treatment records (dated in July 2011, August 2011, January 2012 and March 2012) noted that the Veteran complained of intermittent left neck and shoulder pain, that he took Tylenol and Flexirel, and that acupuncture treatment had helped. March 2012 VA treatment records noted the Veteran had a history of moderate to severe shoulder pain that radiated from the neck. On examination, posterior medial scapular tenderness was noted. A May 2012 VA medical record showed the Veteran again received acupuncture treatment for left shoulder pain. In terms of a present shoulder disability, the Board notes that the March 2011 VA examiner diagnosed minimal degenerative arthritis of both the left and the right shoulder. As such, the evidence demonstrates the existence of a current bilateral shoulder disability, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As for the second requirement for service connection, that of a disease or injury incurred or aggravated during service, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered that the available service treatment records do not confirm that the Veteran suffered an injury to either shoulder. Most of the Veteran's in-service treatment records have been lost. However, the Board is cognizant of the fact that the Veteran's March 1955 discharge examination, one of the few in-service documents available, reflected a normal clinical evaluation of the Veteran's upper extremities. Post-service treatment records first reflect treatment for the shoulders in 1981, more than 25 years following separation from service. In this case, there is no dispute that the Veteran is competent to report symptoms of continuous shoulder pain since his in-service injury, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. As noted in the Board's January 2011 decision when it granted service connection for a low back disorder, the Board finds the Veteran's statements regarding his shoulders to be credible, as there is internal consistency, facial plausibility, and consistency with the other evidence submitted on behalf of the claimant for these and earlier claims. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, he has consistently provided a history of in-service onset of a bilateral shoulder disorder, following an in-service injury when he fell into a ditch while marching on maneuvers. In addition to being internally consistent, his statements of continuity of symptomatology since service are also consistent with other evidence of record. Although the Veteran did not report continuity of shoulder pain since service, when he sought treatment in the 1980s, many of the other treatment records and reports reviewed above often noted that the Veteran ascribed his shoulder pain to his inservice fall. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to assess the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Further, the undersigned found the Veteran's personal testimony to be genuine, credible, and consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). The Board has additionally considered that the Veteran's DD 214 reflects that his military occupational specialty was that of a gunner. Although the record does not verify the exact nature of his job duties, the Board finds that it would have been consistent with the circumstances of his service for him to have to march while stationed in Germany in the 1953 or 1954 time period. See 38 U.S.C.A. § 1154(a). As such, the Board finds that it is reasonable to assume that the Veteran did in fact fall into a ditch while marching during his active duty service and injured his shoulders as well as his lower back. The Board further notes that various VA and private medical examiners have proffered opinions which attribute the Veteran's current shoulder disorders to his in-service accident. As noted above, statements in 2008 by the Veteran's treating physician at VA, Dr. I.C.R., and in June 2008 by a VA staff nurse noted that the Veteran told them that he was told during service that he had left shoulder bursitis as a result of the falls (which the Board cannot corroborate because of the missing service treatment records). These two VA medical personnel concluded that his persistent left shoulder pain was as likely as not the result of his duties or injuries during service. Dr. L.S., a private chiropractor, in his May 2004 report examined the upper tapezius muscle, noted degenerative changes in X-ray studies, acknowledged that the Veteran's pain only began to radiate up the left side of the spine to his neck and under his shoulder in 1974, but opined that the cause of the degenerative changes in the shoulders and elsewhere was more likely than not the trauma suffered during the inservice march and fall. Dr. L.S. noted that this was consistent with long-standing injury and degenerative changes begun decades before. These three medical opinions are opposed by the March 2011 VA examiner who thought that mild degenerative arthritis in each shoulder was not caused by the Veteran's fall into the ditch during service, and was not secondary to his service-connected low back disorder, because she thought they were most likely caused by overuse or normal aging wear and tear. The Board notes that while all the medical opinions considered the Veteran's fall in service and ignored the two incidents of worker's compensation treatment during the 1980s, the VA examiner never discussed or noted the positive medical opinions of her VA colleagues or the private chiropractor, Dr. L.S. Furthermore, the Board notes that since the Veteran filed these service connection claims for the left and right shoulder in June 2007, his testimony has been deemed credible and his evidence sufficient for the grant of service connection for a low back disorder; for degenerative disc disease of the cervical spine; for left and right upper extremity radiculopathy associated with the cervical spine disorder; and for left and right lower extremity radiculopathy associated with the low back disorder. Those service connection claims arose out of the same service incident the Veteran currently blames for his left and right shoulder disorders. Therefore, the Board has made a credibility determination that the Veteran's shoulder in-service injuries occurred. Thus, in giving due consideration to the places, types, and circumstances of his service, in conjunction with May 2004, June 2008 and December 2008 medical opinions noted above, the Board finds that the doctrine of reasonable doubt supports a grant of service connection for both a left shoulder disorder and for a right shoulder disorder. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The issue of secondary service connection need not be addressed in this appeal. ORDER Service connection for a left shoulder disorder is granted. Service connection for a right shoulder disorder is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs