Citation Nr: 1320774 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 08-09 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a right shoulder disorder, including as secondary to a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1981. This matter comes to the Board of Veterans Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board has recharacterized the claim for service connection for a right shoulder disorder to include as secondary to a cervical spine disorder, given evidence which raises this particular theory of entitlement, and will furthermore consider this theory in the first instance (rather than first remanding it) inasmuch as it premises an award of service-connected compensation. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced). The Veteran testified at a hearing before RO personnel in June 2008. In addition, a Travel Board hearing was held before a Veterans Law Judge (VLJ) in May 2010. The VLJ who conducted this hearing has since retired from the Board. Consequently, in April 2013 the Board sent correspondence to the Veteran offering him the opportunity for a new hearing, before the VLJ who would ultimately decide this case. As he did not respond to that letter, it is presumed that the Veteran does not want a new hearing, and the Board will adjudicate this case accordingly. In an August 2010 decision, the Board reopened the instant claims, as these issues previously had been denied by an earlier Board decision, and then remanded the underlying claims on the merits for further development. The reopened claims are now back before the Board for an appellate disposition. FINDINGS OF FACT 1. The competent evidence is approximately evenly balanced on the question of whether the Veteran's cervical spine condition originated due to in-service injury. 2. The Veteran's right shoulder radiculitis is etiologically related to his cervical spine disorder. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for a cervical spine disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for a right shoulder disorder, as secondary to a cervical spine disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). As indicated below, the Board is granting the benefits sought on appeal of entitlement to service connection for cervical spine and right shoulder disorders. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of these matters, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Also with regard to direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). VA law further permits service connection on a secondary basis. To this effect, service connection may be granted 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). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). In this regard, the applicable regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Lay evidence may be competent to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit ruled that competence to establish a diagnosis can exist 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 professional. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see Bostain v. West, 11 Vet. App. 124 (1998). However, lay testimony is competent if it relates to matters within direct observation and firsthand knowledge of the observer. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Veteran's averred basis of recovery includes the assertion that he developed the claimed neck and right shoulder disorders from a motor vehicle accident during military service. He more often cites the cause of neck problems as stemming from this injury. Another stated basis of recovery is that one or both conditions originated from military occupational duties of frequently lifting large boxes (such as loading ammunition boxes onto trucks) and other heavy objects in service. Service treatment records (STRs) reflect that in August 1977, the Veteran was evaluated following a motor vehicle accident as to which it was stated that he had hit his head on the windshield. There was no reported loss of consciousness, nausea and vomiting, or weakness. A mild abrasion was present at the mid-forehead. There was no tenderness of the cervical spine. The Veteran moved all four extremities well, and there was no observable impairment involving the skull or cervical spine. The assessment was of "minor head trauma, secondary to motor vehicle accident." Thereafter, a November 1980 in-service clinical record from the emergency room denotes that the Veteran was seen for the primary complaint of a pulled right shoulder and chest muscle. It was reported that while carrying out military duties, the Veteran had lifted a 50-pound parcel and now complained of aches and pain at the right shoulder joint. There was no history of trauma. Objectively there was present pain at the right shoulder joint, especially on motion, with no swelling or joint tenderness. The assessment was acute musculoskeletal strain at the right shoulder joint. A few days thereafter, the Veteran reported that he was taking pain relievers and was doing better. There was still right shoulder tenderness in the scapular and clavicle area. The assessment was of right shoulder injury. When re-evaluated approximately one month later, the assessment given was of right trapezius strain. Following separation from military service, the available VA outpatient records indicate that in November 1988 the Veteran presented with complaints of right shoulder pain radiating down the right upper arm and right chest over the previous two to three days. He stated the pain felt like a "hitting" sensation and increased with movement of the right arm or bending of the head. He stated he frequently lifted boxes at work of 30 to 40 pounds, aggravating right shoulder pain. On an accompanying x-ray study of the cervical spine, there was slight straightening of the lordotic curve; no fracture, subluxation, or bone destruction; spurs present on the body of C5, C6 and C7 anteriorly; and intact intervertebral foramina. The assessment was of cervical degenerative joint disease and cervical strain; and mild right subacromial bursitis. Then in January 1993, the Veteran was seen at a VA clinic due to chronic neck and lower back pain for several years. There was no specific precipitating injury, although the Veteran was a truck driver and routinely did heavy lifting. There were no radicular leg or arm symptoms. The assessment was degenerative joint disease of the lumbosacral spine. A contemporaneous x-ray of the cervical spine revealed spondylosis with no gross acute abnormality involving the cervical column. The Veteran underwent VA Compensation and Pension Examination for general medical evaluation in June 1994 at which time he reported chronic low back pain and upper dorsal and lower cervical pain and stiffness for many years, which was slowly and progressively worsening and caused him a great deal of pain and restriction. The diagnosis was, in relevant part, degenerative joint disease of the cervical spine as well as lumbosacral and lower dorsal spine, with discogenic disease. In June 2000, the Veteran was noted on VA outpatient evaluation to have cervical stenosis/disc disease. The report of an August 2000 VA general medical examination observes that the Veteran indicated a worsening of his health conditions relating primarily to his cervical spondylosis with discogenic disease, spur formation and septal spinal canal stenosis. He was on oral pain medication and muscle relaxants because of cervical muscle spasms reducing acute pain in the neck region, particularly on the left side. His cervical symptoms and cervical spondylosis had required intermittent use of a soft cervical collar for about three years. Following physical examination, the diagnosis was, in part, cervical spondylosis with disc bulging at several levels accompanied by lordosis, with surgical intervention anticipated in about one month; and central cervical canal narrowing or stenosis with disc herniation at C5-6 and radicular pain in the shoulder region, with an accompanying degree of foraminal stenosis. In October 2000, the Veteran underwent a C4-5 and C5-6 anterior cervical discectomy and fusion with arthrodesis. There were no operative complications. The medical history given at the time was of a three to four year history of neck and bilateral shoulder pain with severe headaches. The Veteran was discharged from the treating VA medical facility three days later. Thereafter, the November 2002 VA outpatient clinical record from an evaluating physician indicates the diagnosis, in part, of "cervical injury since motor vehicle accident during surgery with disc herniation... has residual numbness in left [sic] shoulder and hand with no surgically correctable lesion." The physician then provided the following statement: I think that the patient's residual symptoms of cervical pain, [and] numbness and weakness in the right arm are related to his injury during the motor vehicle accident during the service which led to surgery on his neck and that he is service-connected for this. Subsequently, the Veteran underwent VA examination in May 2003 specifically for the cervical spine, including a full medical history review. The diagnosis given was severe cervical spondylosis with previous surgery. According to the VA examiner, "the records do not indicate that this is likely to be due to any service-connected injury." There was no opinion rationale stated therein. A similar VA examination was conducted in April 2004. Following physical examination, the diagnosis was of a normal right shoulder evaluation, and degenerative arthritis throughout the cervical spine with a history of herniated discs. The opinion expressed on causation was: A very exhausting review of the entire claims file, VA medical records and the service medical records was done. [The Veteran] has provided a quite variable medical history to different providers. ...At no time [in service] did he mention having neck pain as a result of the motor vehicle accident [from August 1977]. When he was referred to the Neurosurgical Department at the Iowa City VA Medical Center for his neck pain, he gave a history of three to four years of neck pain prior to October 2000. Nowhere can I find any chronic complaints of right shoulder discomfort except in his testimony before the Board of Veterans' Appeals. ...It is my strong feeling that there is no reliable evidence to show a relationship exists between his cervical spine complaints or right shoulder complaints that would lead one to believe that this is the result of a motor vehicle accident or any other incident sustained while in the service. ...I believe that his condition is that of a degenerative condition that has come about with time and [is] not related to a specific incident. The June 2008 statement in a clinical record from another evaluating VA physician reflects that the Veteran had undergone several surgeries for cervical spondylosis and myelopathy. The Veteran reported that while in service he worked loading ammunition on and off trucks, and he related development and onset of some neck problems to his work in service. According to the physician, "though there is apparently a paucity of supporting information, it could be theorized that this heavy work could have caused some microtrauma, setting him up for accelerated cervical wear and tear over the ensuring years." Thereafter, a July 2008 private physician's opinion letter purports to link the Veteran's neck and shoulder problems to "heavy lifting" in service, however, the RO subsequently received information from that physician that he did not recall writing this opinion; thus, absent any evidence to the contrary yet, the opinion's value as probative evidence is minimal in the overall balancing of the evidence. On further VA Compensation and Pension examination of October 2010, after physical evaluation, the diagnosis was given of cervical spondylosis and degenerative disc disease, moderate to severe; and posterior right shoulder radiculitis, as a residual of the cervical spine condition (with the Veteran denying any "separate" right shoulder condition). The VA examiner opined that both claimed cervical spine and shoulder conditions were less likely as not a result of injury, illness or event during military service. The stated rationale was that: In review of the Veteran's service treatment records there was one episodic event involving the head and neck after a motor vehicle accident which resolved without any ongoing problems. As well, there was one episode of spasm of the right shoulder which appeared to be resolved without any residual impairment. The Veteran reported no problems with his neck until about 15 to 16 years ago. He related no acute trauma at that time and notes his condition has been progressive over time. This account is consistent with what is reviewed in the medical record and what is observed on examination. Given its review of the foregoing evidence in its entirety, in light of what the criteria are for service connection, the Board will resolve reasonable doubt in the Veteran's favor and find service connection warranted for the claimed cervical spine and right shoulder disorders. In so doing, the Board resolutely applies the doctrine that where the evidence is roughly evenly balanced on a material issue, reasonable doubt will be resolved in a claimant's favor on that matter. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As to the basis for the Board's decision, there are two main justifications, the first being that there is tenable favorable medical opinion evidence of record, namely, the November 2002 VA physician's pronouncement that both cervical and "right arm" (presumably the right identified shoulder disorder) problems were related to the documented in-service motor vehicle accident of 1977. This opinion, whereas its evidentiary basis is not immediately clear, nonetheless concretely establishes a causal relationship between present-day disability and an incident of military service, i.e., a causal nexus to service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("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 a disease incurred in service."); Hickson, supra. See also Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999). Another opinion of record from a different VA physician, dated from June 2008, lends some credence to the earlier treatment provider's conclusion, if on a different rationale, that it was possible that military occupational duties lifting and loading heavy cargo predisposed the Veteran to develop future problems. Ultimately, it is the November 2002 that is most probative, because it is a definitive statement on causation. See e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical professional's use of equivocal terms such as "may" or "may not" was too speculative to constitute a definitive opinion on issue of causation). That notwithstanding, this opinion even by itself is sufficient to support service connection, under VA's benefit-of-the-doubt doctrine, even when weighed against the VA Compensation and Pension examiners' opinions to the contrary (which for reasons stated below themselves contain some material evidentiary deficiencies). Essentially, the evidence on the subject of causation is in a state of relative equipoise, being evenly balanced, or very close to such a state. Contributing to the Board's finding in this regard, and underlying its decision, is the guiding principle of continuity of symptomatology, inasmuch as there is at least the semblance of a pattern of continuous signs and symptoms of cervical spine and right shoulder pathology since the Veteran's discharge from military service. While the Veteran was discharged in 1981, approximately just seven years later he was evaluated for symptoms in 1988, and was already then determined to have cervical degenerative joint disease and cervical strain, and mild right subacromial bursitis. When seen in 1993, the Veteran described having chronic neck pain for several years beforehand. The evidence suggests a pattern of symptoms that if nothing else, began relatively soon after service discharge. As indicated, continuity of symptomatology is a legitimate means of supporting recovery where involving a chronic disease for VA purposes, and arthritis is recognized as amongst those chronic conditions pursuant to 38 C.F.R. § 3.309(a). The presence of continuity of symptomatology further substantiates the favorable medical opinion evidence in this case already cited above. Moreover, while the Board recognizes that there is more than one unfavorable assessment on etiology from VA examiners in this case, which initially appear to involve a more detailed inquiry than the favorable November 2002 physician's opinion made, none of the VA Compensation and Pension examinations here were ultimately sufficient in and of themselves, often reflecting key factual inaccuracies in details of precipitating in-service injuries or dates of post-service treatment, and in one instance containing little supporting rationale at all. While it is theoretically possible to go back and attempt to address these deficiencies with a focused inquiry and re-examination, the Board concludes that the evidence in its current state already provides a sufficiently comprehensive basis to issue a favorable decision, for the reasons cited, and applying the doctrine of reasonable doubt. See again, 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board further observes that on the most recent VA examination of October 2010, regarding a right shoulder disorder in particular, the diagnosis was of posterior right shoulder radiculitis as a residual of the cervical spine condition, "with no separate right shoulder condition," thus indicating that the right shoulder disorder was actually neurological impairment that developed secondarily to the cervical spine problem, and suggesting a theory of secondary service connection. See 38 C.F.R. § 3.310. The Board finds this a likely medical explanation. As service treatment records show, the 1977 in-service motor vehicle accident appeared to involve injury only to the neck region, without complaint of a right shoulder injury. The only in-service treatment for right shoulder symptoms was for a muscle injury, not nerve impairment. As a result, the most likely possibility according to the evidence is that the current neurological condition of the right shoulder originated secondarily to the now service-connected cervical spine condition as a manifestation of radiculitis, and the Board's decision to award service connection for the right shoulder disorder takes this theory into account. On these grounds, the criteria are met to establish the claims on appeal. ORDER Service connection for a cervical spine disorder is granted. Service connection for a right shoulder disorder, as secondary to a cervical spine disorder, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs