Citation Nr: 1313247 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-12 771 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability or service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision or rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran's original claims file has been lost or destroyed in VA's possession and neither his current rebuilt claims file nor his Virtual VA "eFolder" contains pertinent documentation, all indications are that the Veteran appealed a rating action denying service connection for a right shoulder disability. The only indication that he appealed a rating decision denying service connection for a cervical spine disability was from him and his representative at a September 2012 hearing before the undersigned Veterans Law Judge. The benefit of the doubt shall be given to the Veteran in this regard, however, in light of VA's fault. Given the lack of pertinent documentation, it is unknown when this matter last was adjudicated. It thus is unknown whether all the pertinent evidence was considered as of this last adjudication or whether additional pertinent evidence was obtained thereafter. Additional pertinent evidence must be referred to the agency of original jurisdiction (AOJ), which in this case is the RO, for initial review unless either the right to such review is waived or the benefit to which the evidence relates may be fully allowed. 38 C.F.R. § 20.1304(c). Neither the Veteran nor his representative has submitted a waiver. Yet the benefit sought with respect to a right shoulder disability is granted herein. The Board therefore may review any additional evidence pertinent to the right shoulder in the first instance. Entitlement to service connection for a cervical spine disability, however, is addressed in the REMAND portion of the decision below. As such, it is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Any additional evidence pertinent to the cervical spine accordingly will be considered by the AOJ in the first instance followed later by consideration by the Board. FINDING OF FACT The Veteran's current right shoulder disability was incurred during service. CONCLUSION OF LAW The criteria for establishing service connection for a right shoulder disability have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159. Discussion of these duties is not necessary because service connection for a right shoulder disability is granted herein. It follows that any errors committed regarding these duties were harmless. II. Service Connection The Veteran contends he has a right shoulder disability as a result of his service. Specifically, he contends that he has had right shoulder symptoms ever since injuring this shoulder doing heavy lifting during service. Service connection "basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service . . . or if preexisting such service, was aggravated therein." 38 C.F.R. § 3.303(a); 38 U.S.C.A. §§ 1110, 1131. To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also may be established for any disease diagnosed after discharge when the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Arthritis is a chronic disease. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). For chronic diseases, service connection may be established in addition to the above by evidence of chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Merely isolated findings are insufficient, as is a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b); Barr, 21 Vet. App. at 303. Continuity of symptomatology after service is required if the disease is noted during service but is not, in fact, chronic or where a determination that it is chronic legitimately may be questioned. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). If certain requirements are met, service connection is presumed for chronic diseases. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran must have served 90 days or more during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). Manifestation of the chronic disease, though not necessarily diagnosis, also must have been to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2-3), (c). Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease must be taken into consideration even if the aforementioned requirements are met. 38 U.S.C.A. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a). The Board must explain what evidence it finds to be persuasive and unpersuasive as well as explain why any evidence favorable to the Veteran is unpersuasive. See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an assessment of the probative value of the lay (non-medical) evidence in addition to the medical evidence must be undertaken. Lay evidence indeed may be sufficient by itself to support a claim. Barr, 21 Vet. App. at 307. This is the case where it is both competent and credible. When there is an approximate balance of positive and negative evidence, the benefit of the doubt is given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran thus prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against his claim. Id. The Board has a heightened obligation to explain and to consider the benefit of the doubt when, as here, records presumably or actually are lost or destroyed while in the possession of the government. Ussery v. Brown, 8 Vet. App. 64 (1995); Cuevas v. Principi, 3 Vet. App. 542 (1992); Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the standard for establishing service connection is not lowered. Russo v. Brown, 9 Vet. App. 46 (1996). Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In this case, the Board finds the preponderance of the evidence supports service connection for a right shoulder disability. All necessary requirements for establishing entitlement to the benefit are met. There can be no valid claim if there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability exists when there is a disability at the time a claim is filed or at any time during its pendency. McClain v. Nicholson, 21 Vet. App. 319 (2007). It is unknown precisely when the Veteran filed his claim. However, it appears he did so just before his separation. A VA QTC medical examination indeed was conducted a few months prior to his separation in March 2006. Right shoulder strain, resolved, was diagnosed after X-rays showed no significant findings. Yet January 2008 VA X-rays of the Veteran's right shoulder showed degenerative spondylitic spurs at the acromioclavicular (AC) joint. Arthritis of the shoulders, which includes the right shoulder, was noted among his past medical history in a July 2008 private treatment record. Private magnetic resonance imaging (MRI) dated in May 2010 showed moderate AC joint arthrosis with mild periarticular marrow edema as well as mild impingement type anatomy secondary to an anterolaterally downsloping type II-III acromion with mild supraspinatus tendinosis. An accompanying private treatment record contains the interpretation of this MRI as showing acromial spurs and arthritis as well as a diagnosis of bilateral shoulder impingement syndrome and general diagnoses of osteoarthritis and degenerative joint disease (DJD). Accordingly, it is undisputed that the Veteran has a current right shoulder disability inclusive of arthritis. Service treatment records document the following. The Veteran's upper extremities, which include his right shoulder, were normal at his May 1981 entrance examination and every routine examination thereafter. However, he first complained of right shoulder symptoms in March 1992. He denied injury thereto as well as a history of heavy lifting. X-rays showed moderate narrowing of the AC joint consistent with degenerative change. Diagnoses of right shoulder strain, right shoulder tendinitis, and right AC DJD were made. In July 2005, he again complained of right shoulder symptoms. Suspect early osteoarthritis versus bursitis was diagnosed. X-rays taken following this diagnosis showed degenerative changes of the AC joint. It thus is undisputed that the Veteran incurred a right shoulder disability, which includes a significant arthritis component, during his service. It further is undisputed that this disability was chronic. No diagnosis made contained the word chronic. While the findings of arthritis were isolated in that there were only two made over 13 years apart, this is attributable to the fact that diagnostic tests such as X-rays of the Veteran's right shoulder were undertaken only at these times. Such testing indeed was not taken as part of the routine examinations, even when the Veteran contemporaneously reported right AC joint DJD. VA has long recognized that diagnostic tests such as X-rays are required to establish the presence of arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Given the foregoing, all that remains is a determination as to whether or not the Veteran's current right shoulder disability which includes arthritis is clearly attributable to intercurrent causes and not his in-service right shoulder disability inclusive of arthritis. Of note in this regard is that arthritis can be degenerative or due to trauma. Id. No intercurrent cause is found here. Despite the Veteran's contention that he injured his right shoulder during service, his arthritis was characterized in service treatment records as degenerative rather than traumatic. It also was characterized as degenerative in post-service VA and private treatment records. These post-service records further do not reference any right shoulder injury. The Veteran has not reported any such injury. He is competent in this regard because the lack of an injury is within his personal experience. Layno v. Brown, 6. Vet. App. 465 (1994) (holding that a lay person is competent to relate facts or events that he observed or that is within the realm of his personal knowledge). He is credible in this regard because there is no reason to doubt him. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (collectively holding that competent lay statements may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor). Acknowledgement is given to the fact that diagnostic tests completed during service in March 1992 and July 2005 and post-service in January 2008 and May 2010 showed right AC joint degenerative arthritis while those from the March 2006 VA QTC medical examination showed no right AC joint arthritis. This arguably signifies that the Veteran had arthritis during service, no longer had arthritis near the conclusion of his service, and then had arthritis again post-service as a result of some intercurrent cause. However, this scenario is quite unlikely. All diagnostic tests are in agreement with the exception of the March 2006 diagnostic tests. Discussed above is that there is no indication, whether medical or lay, of an intercurrent cause. The most plausible explanation therefore is that the March 2006 diagnostic tests are inaccurate. In other words, the Veteran most likely has had arthritis since March 1992. Service connection for a right shoulder disability including arthritis, in sum, is established outright without the need to invoke the benefit of the doubt rule. This determination renders it unnecessary to proceed by discussing private Dr. T.F.'s August 2011 letter containing the opinion that the Veteran has several physical conditions, to include those of the right shoulder, which "may be a result of his intensive military training career." Discussion of whether service connection for a right shoulder disability including arthritis may be presumed additionally is unnecessary. Of note, however, regarding this alternative theory of entitlement is that the January 2008 VA diagnostic tests showing arthritis were taken just a few months after the Veteran's first post-service year. The aforementioned determination that the Veteran most likely has had arthritis since 1992, and thus throughout the entirety of his first post-service year, is also noted. ORDER Service connection for a right shoulder disability is granted. REMAND Although the Board sincerely regrets the delay of a remand, adjudication of the Veteran's entitlement to service connection for a cervical spine disability cannot be undertaken as of yet. More development is needed. Such development is necessary to ensure that the Veteran is afforded every possible consideration. When VA provides a medical examination or medical opinion for a service connection issue, whether or not there was an obligation to do so, the duty to assist requires that it be adequate. Barr, 21 Vet. App. at 303. A medical examination or opinion is adequate when it allows the Board to perform a fully informed evaluation. Id. Consideration must be given to the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). The disability present, if any, must be described in sufficient detail during the medical examination. Id. The factual premises underlying a medical opinion must be accurate. Reonal v. Brown, 5 Vet. App. 458 (1993). The rationale for a medical opinion also must be clearly and fully articulated. Stefl, 21 Vet. App. at 120; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was afforded a VA QTC medical examination for his cervical spine in September 2011. In May 2012, he had a VA medical examination concerning his cervical spine. Both examinations were adequate. The Veteran was interviewed regarding his cervical spine symptoms at each examination. Physical assessment of his cervical spine was undertaken at each examination. Diagnostic testing in the form of X-rays was performed at the September 2011 examination, which showed mild degenerative changes and congenital anomalies. Diagnostic tests, which showed arthritis/DJD, mild spurring C5-C6 with mild foraminal stenosis, and moderate bilateral cervical radiculopathy, were reviewed at the May 2012 examination. Cervical spine degenerative arthritis was diagnosed at the September 2011 examination while mild cervical stenosis was diagnosed at the May 2012 examination. It follows that the disability present was described in sufficient detail. A medical opinion was rendered following completion of the September 2011 VA QTC medical examination. It is not adequate. The opinion was that it would require resort to mere speculation to determine whether or not the Veteran's cervical spine disability is related to his service or to his service-connected thoracolumbar spine degenerative arthritis. There is no indication that it was based on considered of the Veteran's entire medical history. Indeed, it was not noted whether or not the claims file was reviewed. The opinion further was rendered by a physician, who noted that an orthopedic opinion is needed. It therefore cannot be relied upon. See Jones v. Shinseki, 23 Vet. App. 382 (2010). A medical opinion was rendered following completion of the May 2012 VA medical examination. Like the September 2011 opinion, it also is not adequate. The opinion was that the Veteran's cervical spine disability was less likely than not attributable to his service-connected thoracolumbar spine degenerative arthritis. It was based upon a review of the Veteran's claims file. However, it was not rendered by an orthopedist but by a staff physician. It is not supported by a clearly and fully articulated rationale. That stenosis of the neck vertebra is not caused by thoracolumbar arthritis was all that was set forth. No explanation was provided. The pertinent evidence was not discussed, and no pertinent medical literature was cited. Additionally, the opinion is not complete. Secondary service connection is established by showing that a current disability was either proximately caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Here, proximate cause was considered with respect to the Veteran's service-connected thoracolumbar spine degenerative arthritis but not proximate aggravation. Neither proximate cause nor proximate aggravation with respect to his right shoulder disability was considered, as service connection for it was granted herein. Finally, there was no consideration as to whether his cervical spine disability is related to his service. To cure the aforementioned deficiencies, another VA medical opinion rendered by an orthopedist or similar specialist is needed. Remand is required so that arrangements can be made for such. Another VA medical examination is not necessary unless the orthopedist or similar specialist deems another physical assessment of the Veteran necessary. He indeed can be interviewed via telephone as well as in person. The orthopedist or similar specialist must review the claims file, as well as pertinent documentation in the Virtual VA "eFolder," given the requirement that the Veteran's entire medical history be considered. This includes service treatment records documenting his complaints of cervical symptoms. It also includes Dr. M.D.'s March 2009 letter and Dr. T.F.'s August 2011 letter each indicating that the Veteran's cervical spine disability "may be" a result of his intense military training career. Efforts to obtain any outstanding VA or private treatment records for association with the claims file or "eFolder" also must be completed before another VA medical opinion is rendered for the same reason as aforementioned. VA's duty to assist includes making reasonable efforts to help procure pertinent records. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). When the existence of non-Federal (private) records is discovered, the claimant must be requested to either submit them to VA or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1). The claimant shall be notified if requested records, whether Federal or non-Federal, cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1). VA treatment records dated into February 2012 have been associated with the claims file or "eFolder." Some concern the Veteran's neck, and therefore suggest that he receives ongoing VA treatment for it. However, there is no indication that VA treatment records dated from February 2012 to present have been requested. VA treatment records plausibly could be expected to be among the evidence before the Board, and thus the Board has constructive notice of their existence. Bell v. Derwinski, 2 Vet. App. 611 (1992). Requests for them therefore must be made, with notification to the Veteran if the requests are unsuccessful. Numerous private treatment records have been associated with the claims file or "eFolder." Some concern the Veteran's neck, and therefore suggest that he received ongoing private treatment for it. To date, VA has not requested that the Veteran either submit complete updated pertinent private treatment records or provide enough information to identify and locate them as well as authorize their release to VA. Such requests must be made. If the Veteran provides the information and authorization, an initial request for the records must be made with follow-up requests and notification to him if they are unsuccessful as necessary. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain all updated VA treatment records (dated from February 2012 to present) regarding the Veteran. Associate all records received with the Veteran's claims file or "eFolder." If no records or incomplete records ultimately are received, notify the Veteran pursuant to established procedure. Document the Veteran's claims file or "eFolder" as appropriate regarding this paragraph. 2. Ask the Veteran to either submit complete updated private treatment records regarding his neck or provide enough information to identify and locate them along with authorization for their release to VA. If he provides information and authorization, make an initial request for the records. Also make follow-up requests as necessary. Associate all records received with the Veteran's claims file or "eFolder." If no records or incomplete records ultimately are received, notify the Veteran pursuant to established procedure. Document the Veteran's claims file or "eFolder" as appropriate regarding this paragraph. 3. After completion of all of the development in the above paragraphs, arrange for an orthopedist or similar specialist to render another VA medical opinion regarding the Veteran's cervical spine disability. The Veteran's claims file and pertinent documents in the Virtual VA "eFolder" shall be made available and reviewed. If deemed necessary, arrangements shall be made for another VA medical examination to assess the Veteran physically. The Veteran shall be interviewed again if at all possible regarding his relevant history and current symptoms, whether via telephone or in person. Thereafter, the appropriate diagnosis or diagnoses for the Veteran's cervical spine disability shall be indicated. The Veteran should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical spine disability: (a) was incurred during the Veteran's service, (b) is otherwise related to his service, (c) was caused by his service-connected thoracolumbar spine degenerative arthritis and/or his service-connected right shoulder disability, or (d) was aggravated (permanently worsened beyond the natural progression) by his service-connected thoracolumbar spine degenerative arthritis and/or his service-connected right shoulder disability. If aggravation is found, a further opinion is needed as to: (a) the level of disability prior to the aggravation and (b) the current level of disability. This is necessary so that the amount of disability attributable solely to the aggravation may be determined. A clear and complete rationale (explanation) shall be provided for each opinion rendered. This shall include discussion of pertinent medical principles, with a citation for any literature referenced, as well as the pertinent medical evidence and lay evidence. Service treatment records, post-service VA and private treatment records, Dr. M.D.'s March 2009 letter, Dr. T.F.'s August 2011 letter, the previous VA medical examinations and opinions, and the Veteran's statements and testimony therefore specifically must be discussed (see the body of this remand for more details). Chronicity and continuity of symptomatology also specifically must be discussed (see the body of this decision for the pertinent legal requirements). If an opinion cannot be provided without resort to mere speculation, a complete and clear rationale for why this is so shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is because more information is needed, because the limits of current medical knowledge have been exhausted, or because of some other reason. Each of the above actions shall be documented fully in a report. A copy of the report shall be placed in the Veteran's claims file or "eFolder." 4. Finally, readjudicate the issue of entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability or service-connected disabilities. If this benefit is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. Place a copy of the SSOC in the Veteran's claims file or "eFolder." No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that failure to report for any scheduled examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument on the issue the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law indeed requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs