Citation Nr: 1302683 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 08-26 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from May 1962 to April 1965, and from November 1968 to January 1971. The appeal comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that it has recharacterized the Veteran's claims based on medical findings upon the most recent examinations in August 2010, as described in the body of this decision. The Board remanded the appealed claims in July 2010 for additional development, and they now return to the Board for further review. Formerly the subject of appeal, and also remanded by the Board in July 2010 was a claim for service connection for a sleep disability. However, by a December 2011 decision the Appeals Management Center (AMC) granted service connection for sleep paralysis, claimed as a sleep disorder, and assigned a 30 percent initial disability rating. The AMC in that December 2011 decision noted that the award represented "a total grant of the benefits sought on appeal," so that the issue "is considered fully and favorably resolved." The Veteran did not raise any subsequent objection to this characterization of the issue as having been resolved, and did not otherwise seek further benefit from his sleep disability claim formerly the subject of appeal. Accordingly, as the December 2011 AMC determination thus appears to be a full grant of the benefit sought by the Veteran's claim for service connection for a sleep disability, there is no longer a case in controversy for review by the Board as to that issue. In the Introduction to its July 2010 Remand, the Board noted that the February 2008 RO decision also denied the Veteran's claim for service connection for a schizoid personality based on the absence of new and material evidence to reopen the claim. As the Board then also noted, although the Veteran filed a notice of disagreement (NOD) responsive to that denial, correspondence in July 2008 from the Veteran's accredited representative reflected that the Veteran wished to withdraw his appeal as to that matter. Subsequently, the RO did not provide a statement of the case. The Board accordingly found that the issue was not before the Board. However, correspondence to the Veteran's congressman dated in February 2009 and a VA Form 21-4138 dated in March 2010 could be construed as informal claims to reopen the Veteran's previously denied claim for entitlement to service connection for schizoid personality. Therefore in that July 2010 Introduction, the Board referred the issue to the Agency of Original Jurisdiction (AOJ) for appropriate action. Because it does not appear that action has yet been taken on this potential request to reopen a claim for service connection for a schizoid personality, the issue is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. By the preponderance of the evidence, the Veteran's left shoulder disorder developed in service. 2. By the preponderance of the evidence, the Veteran's cervical spine disorder developed in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a cervical spine disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties 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. 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). Because the Board has granted the complete benefits sought as to the claims adjudicated herein, there remains no reasonable possibility of prejudice to the Veteran as to these claims by any failure in the Board's duties to notify and assist the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Evidentiary Considerations Relevantly, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although medical evidence may be required to support a claim in instances were specialized knowledge is required, lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (a lay persons is competent to testify to pain and visible flatness of the feet). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, supra; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." ). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. III. Claims for Service Connection for a Left Shoulder Disorder And a Cervical Spine Disorder The Veteran contends, in effect, that either the claimed disorders of the left shoulder and cervical spine developed in service or they have persisted in their symptoms since service, so that in either event service connection is warranted. Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 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 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran's service medical records reflect that the Veteran received treatment in January 1969 for complained-of pain in the left shoulder. No history is reflected in the treatment record. There is thus no service documentation of a precipitating injury. The medical practitioner did note that the Veteran had good range of motion without crepitus or swelling. The practitioner assessed shoulder strain, prescribing 24 hours of limited duty. The Veteran was seen again in service at a dispensary in February 1969 for complained-of left shoulder pain with quite painful range of motion. X-rays were obtained of the left shoulder and scapula, with no noted fracture. However, once again no history was recorded. The medical practitioner prescribed a Velpeau wrap, with the arm to the chest, and also prescribed pain medication. Service treatment records do not reflect how long the arm was kept immobilized or how long pain medication was taken. A September 1969 service general examination noted no disabilities, including none of the left shoulder or arm. A November 1969 service examination for transfer purposes found the Veteran physically qualified for transfer. There is also no service separation finding of a left shoulder condition. Service records are entirely negative for a cervical spine disorder or pathology. The claims file lacks records of any treatment or examination for the left shoulder or the cervical spine for the interval between service and 2007. Upon a September 2007 VA urgent care treatment, the Veteran complained of pain across the left shoulder and numbness in the left arm and the fourth and fifth fingers of the left hand. He then denied any past history of injury to the neck or shoulder. He reported a history of seeing a chiropractor four times in the past (with no dates of past treatment specified in the record) without improvement. The Veteran then received symptomatic care by a nurse practitioner, with no diagnosis then assigned. Upon an August 2010 VA examination for compensation purposes addressing the left shoulder, the Veteran provided a history of having suffered a stabbing blow to the upper left scapula by the bolt handle of his M-14 rifle when he fell from a structure during training at Camp Pendleton and landed on his back. He reported receiving treatment and a temporary profile. He also reported being treated again a month later for the same injury, with his arm placed in a sling. The Veteran reported that the pain subsided sufficiently that he could function, but that the shoulder continued to bother him, particularly when he used the arm forcefully. The Veteran added that he was able to work around the chronically recurrent pain in part because the injury was to the left shoulder and he was right handed. He added that over time the pain had grown worse while the stimulus required to precipitate a flare-up had decreased. He reported that over the years he had sought chiropractic treatment, but he did not feel that this had been helpful. At the August 2010 examination the Veteran reported that currently carrying a medium amount of weight or lifting the arm overhead precipitated pain, with a flare-up occurring every two to three weeks. He avoided carrying weight or working overhead with the left arm during flare-ups. The examiner found pain and stiffness in the arm, but not weakness, instability, deformity, or giving way. Motion of the arm was affected, with motion limited in all planes compared to the right. There was crepitus, tenderness, and a positive supraspinatus sign. X-rays of the shoulder contemporaneous with the August 2010 examination revealed an inferiorly-projecting distal acromial bone spur, and a small inferiorly-projecting lateral acromial bone spur possibly impinging on the rotator cuff. The examiner assessed that these x-rays and additional x-rays obtained to address the cervical spine revealed findings consistent with an old injury deforming the acromion and superior scapula, with the formation of bone spurs impinging the rotator cuff. The examiner further found that these were consistent with the Veteran's self-reported history of injury from a fall with stabbing blow to the upper left scapula by the bolt handle of his M-14 rifle. The examiner noted the Veteran's post-service history of employment in construction, but nonetheless concluded that it was more likely than not that the Veteran's current left shoulder condition was related to "the condition for which he was treated in service." The examiner supported this opinion by concluding that the mechanism of injury as described by the Veteran was consistent with the x-ray evidence of old injury deforming the acromion and superior scapula, and with the development of the noted bone spurs. The Veteran's November 2007 medical report reflects his assertion at the time that he had no history of injury to the left shoulder. This is reasonably consistent with the Veteran's report upon the August 2010 VA examination of having fallen from a structure and landing on his back with the bolt handle from his M-14 stabbing the upper part of his left scapula. Such an injury is thus localized to the back, and not inconsistent with his November 2007 report of no past shoulder injury. The Veteran's service records of treatment for the left shoulder were not found by the August 2010 examiner to be inconsistent with the self-reported trauma and subsequent difficulty with the shoulder. To the contrary, the examiner found both the narrative and the documented service treatment to be consistent with injury causative of the current shoulder disorder. The August 2010 VA examiner found it more likely than not - based on the Veteran's narrative, service records, and current findings consistent with both of these - that the Veteran's current left shoulder condition was causally related to service. The Board does note that in a prior statement submitted in March 2008, the Veteran attributed his current left shoulder condition to carrying heavy equipment in service, including an M-60 machine gun with barrel group. The Veteran did not then mention any fall from a structure in training a Camp Pendleton. However, as already noted, the Veteran did not report at the August 2010 examination that he struck his shoulder in that fall, but rather that he landed on his back with his M-14 striking the left scapula. The Board will not impute medical knowledge of a causal link between the old injury to his scapula, as identified by x-ray in 2010, and a condition of the left shoulder. To do so would unreasonably require of the Veteran medical knowledge in his presentation of claims and evidence, and thus thwart the Veteran-friendly, non-adversarial nature and intent of VA law. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (medical knowledge non-imputation rule); see Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (non-adversarial posture of VA law); see also Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009). Because the weight of the evidence is supportive of the August 2010 VA examiner's competent, credible opinion in support of a causal link to service, without competent, credible evidence contrary to this opinion, the Board finds that the weight of competent and credible evidence of record favors a grant of service connection for a left shoulder disorder. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303. Neither service nor post-service treatment or examination records reflect complaints or findings of cervical disability prior to the Veteran's current claim. Upon August 2010 VA examination by the same VA examiner who addressed the left shoulder, the Veteran's claimed cervical spine disorder was also addressed. The Veteran then reported that ever since his above-noted fall onto his back during in-service training at Camp Pendleton, he experienced not only left shoulder difficulty but also a "crick in his neck", with burning and stinging sensations radiating to the area of the left trapezius. The Veteran reported having moderate cervical symptoms flaring up every one to two months and lasting three to seven days. He could not identify precipitating or alleviating factors. He denied any other cervical history. The August 2010 VA examiner found some limitation of motion of the cervical spine, as well as pain on active motion and pain with repetitive motion. X-rays of the cervical spine revealed no acute fracture or dislocation, but did show degenerative changes with "chronic appearing limbus-type changes of the C5." The examiner assessed left brachial plexopathy. The examiner then opined that it was at least as likely as not that the Veteran's current cervical condition was causally related to service, based on the likelihood that when the Veteran fell and suffered the contusion injury to his left scapula, he also suffered a head hyperextension with ipsilateral rotation. The VA examiner noted that his opinion was "impossible to confirm" in the absence of service documentation of cervical injury, but such confirmation is ultimately not required for the present adjudication. Buchanan. The Board finds that the Veteran's narrative of a fall injury in service, when coupled with consistent medical findings upon current examination, serves as sufficient credible evidence to support resulting cervical injury through head hyperextension with ipsilateral rotation, in turn supporting in-service injury etiology for the current cervical spine pathology. Id.; Jandreau; Layno. Accordingly, it is sufficient that the examiner finds that it is at least as likely as not that during the accident in service causative of his left shoulder condition the Veteran also suffered injury to the cervical spine causal of current cervical pathology, where, as here, the record does not contain competent, credible evidence contrary to such a causal association. Evans. As already noted, the August 2010 examiner did note the Veteran's post-service career in construction, and such a work history was apparently insufficient to negate the likelihood found by this examiner of a causal link between the in-service injury and the current cervical disorder. The Board is not competent to address such a causal link as a medical question, and hence must ultimately accept the informed medical opinions of medical professionals to support its adjudication. Evans; Rucker. The Board does not find any material deficiency in either the evidence relied upon or the medical reasoning of the August 2010 VA examiner, and hence finds the opinions of the examiner to be not only competent and credible, but also warranting of sufficient weight to support the Board's adjudicative determination of a causal link between service and the Veteran's current cervical condition. Evans. Accordingly, the Board finds that the preponderance of the evidence also favors the claim for service connection for a cervical spine disorder. 38 C.F.R. § 3.303; Alemany. ORDER Service connection for a left shoulder disorder is granted. Service connection for a cervical spine disorder is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs