Citation Nr: 1328917 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-32 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a shoulder disability. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and T.O. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to April 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for a shoulder injury. In September 2008, a Travel Board hearing before the undersigned Veterans Law Judge was held at the RO. A transcript of that hearing is of record. This appeal was previously before the Board, and the Board remanded the claim in December 2008, August 2009, March 2010, and March 2012 for additional development. The case has been returned to the Board for further appellate consideration. In November 2012, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2012). The requested opinion has been provided and associated with the Veteran's VA claims folder. Although the VHA opinion has not yet been provided to the Veteran and his representative, as the Board is granting in full the benefit sought on appeal, there is no prejudice to the Veteran in deciding the claim at this time. 38 C.F.R. § 20.903 (2012); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence indicates that his current shoulder disability, diagnosed as chronic recurrent left trapezius muscle strain, is causally related to his military service. CONCLUSION OF LAW The criteria for establishing service connection for a left shoulder disability (diagnosed as chronic, recurrent left trapezius muscle strain) have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that he has a current left shoulder disability as a result of an incident during service in which an air conditioning vent the Veteran was holding slipped and fell onto his neck and shoulders. He reports having problems with his left shoulder off and on since this injury. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". Medical records show that the Veteran has a current left shoulder disability. For example, following physical examination of the Veteran and a review of the record, VA examiners in May 2009 and May 2011 diagnosed a left trapezius muscle strain. Significantly, the May 2011 examiner diagnosed a chronic and recurrent left trapezius muscle strain. There is also evidence suggesting in-service incurrence of an injury to the left shoulder area. The Veteran's service treatment records show that the he was treated for back pain in service after he was hit across his shoulders by an air duct in November 1989. He was assessed to have an upper back contusion at that time. While the November 1989 treatment record and the subsequent April 2, 1990, separation examination report are negative for clinical findings related to the shoulder, post-service treatment records dated proximate to the Veteran's separation from service, and continuing thereafter, consistently show reports of chronic shoulder pain associated with the November 1989 incident. In this regard, during April 1991 VA treatment, just over one year following separation from service, the Veteran complained of shoulder pain related to when he hurt his back in the Navy. Of note, physical examination revealed the trapezium muscles to be tender. An April 1991 physical therapy report notes that the Veteran had a left scapula injury and wasting of the musculature around the left shoulder and scapula. He was instructed on exercises in order to strengthen those muscles. A November 1992 private treatment medical record also notes the Veteran's complaints of shoulder pain secondary to a vent falling from the ceiling and striking his shoulders two years ago. A general physical performed at that time revealed pain with shoulder flexion. A May 1994 private treatment record shows an assessment of intermittent trapezius spasms. In a September 1995 private treatment record, the Veteran reported a history of pain in the junction of his shoulder and neck since an injury occurring six years prior. Physical examination at that time revealed muscular tension in the left trapezius area. An April 1997 medical record indicates that, due to the Veteran's concern about back problems, he was given shoulder strengthening exercises as a preventative measure. More recent post-service treatment records also document continuing shoulder problems attributed by the Veteran to the incident in service. For example, an August 2005 private medical record notes the Veteran's reported history of neck and back pain since December 1989 when an air vent came down and landed on his neck and shoulders. On examination, the Veteran was tight in bilateral upper trapezius muscles, with the left being especially tight and painful. Also significant is a September 2008 letter from Dr. F.B. indicating that it is possible, but not certain, that the Veteran's shoulder and back problems resulted from the incident in service where an air conditioning vent fell on the Veteran. The Veteran provides a competent and credible account of in-service injury and in- and post-service left shoulder symptomatology, including onset and continuity since separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service treatment records tend to confirm his account of a shoulder injury. Moreover, post-service treatment records document a virtually unchanging account of in-service injury and relevant shoulder symptomatology since separation. Particularly probative are the early post-service medical records documenting the Veteran's account solely for the purpose of obtaining relevant medical care. Thus, the Board finds the Veteran's account of in-service shoulder injury and relevant symptomatology related to the left trapezius muscle, including recurrence since separation, to be competent, credible, and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (VA must consider lay evidence and give it the weight it concludes is appropriate). The Board is cognizant that there are negative medical opinions of record from two different VA examiners addressing the question of whether a current shoulder disability is etiologically linked to his injury in service. However, the opinions are not adequate to resolve the key question for appellate review, as they both failed to discuss significant positive evidence in favor the Veteran's claim. Specifically, in May 2009, a VA examiner provided a diagnosis of left trapezius muscle strain but no opinion was rendered with regard to the etiology of the shoulder disability. In a November 2009 addendum, the same VA examiner concluded that the Veteran's trapezius muscle strain is less likely than not that caused by or a result of military service, specifically, the air conditioning vent falling on the Veteran's upper back. The examiner noted that private treatment records show treatment for the trapezius muscle since 2006 while the incident with the air conditioning vent occurred in 1989. No further rationale was provided. However, the examiner did not address evidence showing that the Veteran has complained of shoulder pain since April 1991. In May 2011, another VA examiner rendered a diagnosis of chronic recurrent left trapezius muscle strain, but did not provide an opinion regarding the etiology of such condition. In a November 2011 addendum, the May 2011 examiner stated that it is not as least as likely as not that the left shoulder symptoms that the Veteran has currently are due to or the result of the left shoulder injury that he incurred while serving in the military. In providing a rationale for the opinion, this examiner also failed to take into the account the Veteran's treatment for shoulder pain since April 1991. In a March 2012 addendum, the same VA examiner confirmed the opinion that he rendered in May 2011. This time, the examiner noted that the medical evidence indicated that there was improvement of the left scapula since the April 1991 treatment record which showed that the Veteran had some winging of the left scapula and some wasting of the musculature of the left shoulder and scapula. Once again, the examiner failed to take into account the Veteran's treatment for shoulder pain since 1991. Thus, the Board finds that the VA opinions of record were prepared without consideration of the complete factual record which includes ongoing complaints of shoulder pain since April 1991. The Board finds similarly insufficient a January 2013 VHA opinion. In this regard, the opinion discusses primarily the Veteran's lumbar and cervical spine, and offers no discussion of the shoulder symptoms or trapezius muscle findings throughout the record. Thus, the opinion was not fully responsive to the Board's request, and is accorded no probative weight. Here, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for a chronic and recurrent left trapezius muscle strain. Service treatment records show that an air conditioning vent fell on the Veteran's shoulders during service, and post-service treatment records dating soon after the Veteran's separation from service document chronic shoulder complaints consistently related by the Veteran to that in-service incident. Moreover, the Veteran has been diagnosed with chronic and recurrent left trapezius muscle strain, and the medical evidence shows continued objective findings related to the trapezius muscle beginning approximately one year following separation from service, and continuing thereafter. Accordingly, the Board finds the evidence of record, medical and lay, tend to support the Veteran's later diagnosis of chronic recurrent left trapezius muscle strain. Thus, service connection is warranted and the appeal is granted. 38 C.F.R. § 3.102. ORDER Service connection for chronic recurrent left trapezius muscle strain, claimed as a shoulder disability, is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs