Citation Nr: 1300737 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 06-06 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected left wrist disability. 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected left wrist disability. 3. Entitlement to service connection for cervical radiculopathy, to include as secondary to a service-connected left wrist disability. ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to February 1986. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO). This case was remanded by the Board in March 2008, March 2010, and July 2011 for additional development. The March 2008, March 2010, and July 2011 Board Remands also referred for appropriate action the Veteran's claims of entitlement to an increased disability ratings for service-connected asthma and a left wrist disability. To date, no action has been taken on these claims and they are again referred for any appropriate action. FINDINGS OF FACT 1. The Veteran's currently diagnosed left shoulder disorder is related to military service. 2. The Veteran's currently diagnosed cervical spine disorder is related to military service. 3. The Veteran's currently diagnosed cervical radiculopathy is related to military service. CONCLUSIONS OF LAW 1. A left shoulder disorder was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. A cervical spine disorder was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. Cervical radiculopathy was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issues involving the Veteran's claims for service connection for a left shoulder disorder, a cervical spine disorder, and cervical radiculopathy as the Board is taking action favorable to the Veteran by granting service connection for these disorders. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In addition, service connection may 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 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is shown to be 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) caused by a service connected disability or (b) aggravated by a service connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran's service treatment records are negative for any diagnosis of a cervical spine disorder, a left shoulder disorder, or cervical spine radiculopathy. The Veteran's service treatment records show that he sustained a left wrist fracture from a fall on April 19, 1985, and then re-injured the left wrist in June 1985. After separation from service, in a November 1989 VA outpatient medical report, the Veteran complained of experiencing a sharp pain in his neck and lower back when he was pulling a cable. He reported experiencing occasional neck and right arm pain since that time. A subsequent VA outpatient medical report gave a diagnosis of acute muscle spasm. An additional contemporaneous computed tomography examination showed no cervical spine abnormalities, while a radiographic examination found no acute bony injury. In a September 2003 VA outpatient medical report, the Veteran complained of severe left shoulder pain since March 2003. He reported that the pain began without a history of trauma. After physical examination, the assessment was left shoulder pain which was suggestive of rotator cuff pathology. The medical evidence of record shows that various left shoulder disorders have been consistently diagnosed since September 2003. A December 2004 electromyography report gave a diagnosis of bilateral C6 radiculopathy, worse on the left, as well as mild left C7 radiculopathy. The medical evidence of record shows that a cervical spine disorder and cervical radiculopathy have been consistently diagnosed since December 2004. In a January 2006 VA outpatient medical report, the Veteran complained of neck and back pain. He reported that the pain began more than 10 years before while he was on active duty following an incident when he injured his left wrist. The Veteran reported that after the initial injury he developed left shoulder and upper back pain which had gotten progressively worse over the years. VA joint and spine examination reports dated in May 2009 gave diagnoses of left subacromial and subdeltoid bursitis; left acromioclavicular joint inflammation; severe spinal canal stenosis at the cervical spine; mild to moderate degenerative disc disease at the cervical spine, more prominent at C6-C7; bilateral C6 radiculopathy and left C7 radiculopathy; and cervical myositis. Following a review of the claims folder, the examiner opined that the Veteran's left shoulder condition, cervical radiculopathy, and cervical myositis were not related to service, nor did they have their onset during service. The rationale was that the Veteran's left shoulder condition was more likely to be related to trauma several years after military service when the Veteran was pulling and lifting a heavy cable, and there was no medical evidence of these conditions within one year of discharge from military service. In a July 2011 VA surgical consultation report, the Veteran reported a 15 to 18 year history of chronic neck pain radiating to both upper extremities and the suboccipital area. A March 2012 VA neck examination report gave a diagnosis of cervical spondylosis. The report stated that the Veteran had bilateral upper extremity radiculopathy due to involvement of the C8/T1 nerve roots. A March 2012 VA shoulder/arm conditions examination report did not give a diagnosis of a shoulder or arm disorder, however the Veteran was reported to have reduced bilateral shoulder ranges of motion, as well as functional loss and/or impairment of the shoulder and arm. Following complete physical and diagnostic examinations and a review of the evidence, the examiner opined that the Veteran's disabilities were less likely than not incurred in or caused by military service. The examiner stated that, with respect to the Veteran's cervical pathology, including radicular symptoms and his left shoulder, these disorders were less likely than not related to military service. The rationale was that the findings were consistent with impingement syndrome of the left arm with overlapping cervical radiculopathy. The examiner stated that these disorders were degenerative in nature, and not likely directly the result of military service or any traumas sustained therein. However, the examiner then stated that the Veteran's "service did likely contribute to these pathologies, but should not be solely attributed to it." The preponderance of the evidence of record supports the Veteran's assertions that the currently diagnosed cervical spine disorder, cervical radiculopathy, and left shoulder disorder are related to military service. The medical evidence of record shows that the Veteran has a current diagnosis of a cervical spine disorder and cervical radiculopathy. In addition, while the March 2012 VA shoulder/arm conditions examination report did not give a diagnosis of a left shoulder disorder, it did find loss of left shoulder range of motion and functional loss and/or impairment. Combined with other medical records which include diagnoses of a left shoulder disorder, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran has a current diagnosis of a left shoulder disorder. While there is no evidence of record of a cervical spine disorder, cervical radiculopathy, or a left shoulder disorder in the Veteran's service treatment records, the Veteran has repeatedly stated that he experienced musculoskeletal pain shortly after an in-service injury which gradually spread to his neck, shoulder, and arm. In this regard, the Veteran's statements are competent to show that he experienced musculoskeletal pain during and after separation from military service. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 21 Vet. App. 191 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). In addition, the Board finds that the Veteran's statements about his history of musculoskeletal pain are credible. The Veteran's service treatment records show he sustained an injury to the left arm during military service which resulted in a sufficiently severe fracture to warrant numerous surgeries. In addition, while there is no medical evidence that the Veteran reported neck or left shoulder pain during military service, the Veteran's current diagnoses trace back to an initial report of pain in September 2003, at which time the Veteran reported that the pain began without a history of trauma. Such a statement is consistent with slowly progressive degenerative changes. There are only two medical reports of record which provide medical opinions as to the etiology of the Veteran's disability, namely the May 2009 VA joint and spine examination reports and the March 2012 VA neck and shoulder/arm conditions examination reports. The former was previously found to be insufficient for VA purposes by the Board in July 2011. While the latter specifically stated that the Veteran's disabilities were less likely than not incurred in or caused by military service, the examiner also stated that military service "did likely contribute to these pathologies." Such a statement clearly indicates that some portion of the Veteran's cervical spine disorder, cervical radiculopathy, and left shoulder disorder were caused by military service. There is no medical evidence of record which provides any information as to what specific portion or symptoms of that disability was caused by military service, as opposed to nonservice-related causes. When it is not possible to separate the effects of a service-connected disorder and a nonservice-connected disorder, the principle of reasonable doubt dictates that such signs and symptoms be attributed to the service-connected disorder. Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's cervical spine disorder, cervical radiculopathy, and left shoulder disorder are related to active service. Therefore, service connection for a cervical spine disorder, cervical radiculopathy, and a left shoulder disorder is granted. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left shoulder disorder is granted. Service connection for a cervical spine disorder is granted. Service connection for cervical radiculopathy is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs