Citation Nr: 1333066 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-22 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a neck disorder. 3. Entitlement to service connection for a left arm disorder, to include as secondary to service-connected disability. 4. Entitlement to service connection for a right arm disorder, to include as secondary to service-connected disability. 5. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected disability. 6. Entitlement to service connection for a right shoulder disorder, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In March 2009, the Board issued a decision denying, in pertinent part, the claims for entitlement to service connection for a left arm disorder, a right arm disorder, a left shoulder disorder, a right shoulder disorder, a neck disorder, and a back disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in a memorandum decision dated in August 2010, the Court vacated the Board's March 2009 decision with respect to those issues and remanded the case to the Board. In April 2011, November 2011, and November 2012, the Board remanded the issues on appeal. The Board is satisfied that there was substantial compliance with its remand directives, and that the record provides an adequate basis for making determinations in this regard. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that the record raises the issue of entitlement to service connection for a left arm disorder, a right arm disorder, a left shoulder disorder, and a right shoulder disorder on a secondary basis, and the issues before the Board have been noted on the first page of this decision. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process). FINDINGS OF FACT 1. The evidence in this case is in approximate balance as to whether the Veteran's current low back disability is the result of an injury suffered in active service. 2. The evidence in this case is in approximate balance as to whether the Veteran's current neck disability is the result of an injury suffered in active service. 3. The Veteran's left arm disorder is a consequence of the progression of the service-connected injury of the neck and back. 4. The Veteran's a right arm disorder is a consequence of the progression of the service-connected injury of the neck and back. 5. The Veteran's left shoulder disorder is a consequence of the progression of the service-connected injury of the neck and back. 6. The Veteran's right shoulder disorder is a consequence of the progression of the service-connected injury of the neck and back. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder, most recently diagnosed as lumbar strain with degenerative disc disease, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for a neck disorder, most recently diagnosed as mechanical cervical pain and history of cervical degenerative disc disease, status post anterior cervical diskectomy and fusion, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. The criteria for secondary service connection for a left arm disorder, diagnosed in March 2006 as chronic upper extremity dysfunctional pain syndrome, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). 4. The criteria for secondary service connection for a right arm disorder, diagnosed in March 2006 as chronic upper extremity dysfunctional pain syndrome, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). 5. The criteria for secondary service connection for a left shoulder disorder, most recently diagnosed as rotator cuff tendonitis, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). 6. The criteria for secondary service connection for a right shoulder disorder, most recently diagnosed as rotator cuff tendonitis, have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013) or in the presumptive period so as to permit a finding of service connection, 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). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Evidence The Veteran claims that he fell during service injuring his head and back and that his arm, shoulder, neck and back problems began directly after his fall and have continued since that time. The service treatment records are negative for any complaint, diagnosis or treatment for any pertinent complaints in this regard. His October 1969 separation examination report shows that his upper extremities, neck and spine were normal and he denied any history of broken bones, arthritis, bone or joint abnormality, a painful or trick shoulder or elbow, or back trouble of any kind. After service the record shows that he sought private treatment beginning in 1990. Records show a diagnosis of left shoulder myofacial pain syndrome in January 1990, and a letter from his private examiner dated that same month indicates treatment for that disorder. The examiner also noted that the Veteran had a problem with a ruptured disk in his lower back with subsequent surgeries for correction of that problem. He was seen in August 1990 for a pinched nerve in the arm and neck. Tendonitis of the shoulders was noted. In November 2005 he complained of neck and bilateral shoulder pain. The assessment was, severe degenerative spondylosis C5-6, C6-7, moderate C7-T1, chronic bilateral cervicalgia, chronic bilateral shoulder dysfunctional pain syndrome, and right and left upper extremity radicular pain. The Veteran was examined by VA in May 2011. The claims file was reviewed. The Veteran's complaints and history were noted. He was examined. The diagnosis was mechanical cervical and lumbar strain with previous disc disease in the neck and back with radiculopathy in both upper extremities and the right lower extremity likely secondary to multilevel disc disease. Tendonitis in both shoulders was also diagnosed. The examiner opined that it was less likely that the diagnosed disorders were causally or etiologically related to military service. The examiner noted that the original service records had no mention of the issues occurring while on active duty. It was also noted that the first initial entry for back or shoulder complaints began in approximately 1989 with notes in 1990, and years later the Veteran began to have extensive problems in the back and neck with subsequent surgical procedures, but there was a lack of documentation while on active duty. The examiner also noted that the Veteran had a back injury in 1995. VA records show that in July 2008, the Veteran was noted to have cervical disc disease with residual left arm numbness. In December 2011, another VA examination was conducted. The diagnoses were mechanical cervical pain; lumbar strain, with degenerative disc disease; history of cervical degenerative disc disease status post anterior cervical diskectomy and fusion; and rotator cuff tendonitis, bilateral shoulders. The examiner noted that "all of this started, as far as medical records concerned, after his military service." The examiner also noted that post service work and activities could "also have caused all of these or lead to all of these problems." Therefore, the examiner concluded that it was less likely as not that disorders were a result of service. A VA opinion was obtained in February 2013 from a VA examiner other than the one who had conducted the December 2013 examination. The claims file was reviewed. The clinician found that, based on reviewing all past and current evidence and based on reviewing the contentions and lay statements, and considering the Veteran's competent and credible assertions that he developed pains and sought treatment in 1973, there was still no reason to change the opinion that had been rendered in December 2011. The clinician again noted that there was no documentation and no medical records to review for many years after service, and thus the sequence of events was not present. In an advisory medical opinion, a VA orthopedic examiner was asked to review the claims file and offer a nexus opinion on the issues in question. It was noted that the Veteran was claiming that symptoms of the back, neck, bilateral shoulder and bilateral arm pain and treatment were related to an inservice injury. The examiner noted that an opinion was requested as to whether there was sufficient evidence in the file and service records to determine the causality of the claimed conditions. It was documented that the Veteran claimed injury of falling from a five to six foot bunker on his back and cutting his head requiring stitches. The Veteran indicated that lifting and stacking sandbags was very stressful thereafter to the back and neck. The Veteran reported other incidents of diving to the ground seeking cover from artillery strikes. It was noted that the record was silent for complaints in service and at separation. The examiner indicated that in 1988 the Veteran underwent a laminectomy for herniated disc, and in July 2000 the disc was removed. The examiner noted a complaint of chronic neck pain for a number of years in November 2005 and right shoulder and arm pain eight months prior. In 2006 the Veteran underwent a cervical diskectomy and fusion. The examiner noted that the disorders did not result from injury sustained while on active duty. This was based on a review of the record, the natural progression of degenerative conditions, outside literature, and 40 years of experience. In an addendum to the VA advisory opinion to provide rationale, a VA orthopedic surgeon noted that he had reviewed the claims file and the prior VA advisory opinion and that the history noted therein was accurate. The examiner found that in his opinion, the spine injuries under fire was a credible etiology for the spinal injury. With regard to the record being silent, the doctor indicated that during the Vietnam era, the silence of any service treatment was common for many reasons such as failure to report injuries other than life threatening in a combat zone or poor record keeping. The doctor further noted that as a Vietnam era Veteran, he could attest to the fact that most Veterans purposely did not cite any medical injury issue at separation as this would delay the process. The examiner noted that furthermore it was unlikely that later the Veteran would have disclosed a disability that might have disqualified him from completing VA sponsored vocational training. The examiner went on to state that in 1973, the Veteran was approximately25 years old and that generally back problems in twenty year olds were usually temporary and self limited. The examiner stated that for the Veteran to take the time to seek medical treatment in 1973 would strongly suggest that the etiology of his back was a direct consequence of service-connected traumatic injury and that this was consistent with the Veteran's stated history of his injury. The examiner indicated that by 1988 the Veteran underwent lumbar laminectomy which would strongly suggest progression link to the service injuries. The examiner indicated that the presentation of disc problems have the potential to generate associated back shoulder and arm pain and therefore without specific documentation of new injuries to the back, shoulders or arms it is more likely than not that the above cited complaints were associated or linked symptoms whose etiology was the neck and low back from service-connected injuries. The examiner reported that, for the above reasons, he disagreed with the findings of the clinician who prepared the advisory opinion. The examiner concluded that based on the above noted review and detailed history it was more likely than not that the Veteran sustained service connected neck and back injuries and that the associated complaints of back shoulders and arms are the consequence of the progression of the service-connected injury of the back and neck. Discussion In reviewing the evidence of record, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise as to whether the Veteran's current low back disorder and neck disorder are etiologically related to an in-service injury. The Board finds the evidence, which includes the Veteran's credible assertions and VA examination reports provides a reasonable basis to award service connection. 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). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is aware that a medical opinion cannot be rejected solely because it is based upon history supplied by the claimant. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The Court also stated that "most of the probative value of a medical opinion comes from its reasoning", and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, after weighing all the evidence, the Board finds that the VA opinions offered are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. See Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). All opinions offered have probative value. The examiners reviewed the Veteran's records. The Board does not find any stated opinion to be substantially more persuasive than that provided by any other examiner. The VA examiners who offered negative opinions based their findings in part on the absence of documentation of a specific incident involving the back in service. However, 38 C.F.R. § 3.303(d) provides that 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. See 38 C.F.R. § 3.303(d). Essentially the lack of specific documentation in service in and of itself is not always fatal to a service connection claim. While there is no showing of the injury in service, the most recent VA addendum examiner based his finding on a history provided by the Veteran. The examiner found the Veteran to be an adequate historian in this regard and offered a positive opinion. After weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise with regard to whether the Veteran has lumbar spine disorder and a neck disorder that either began in or is otherwise related to his military service. For the Veteran to be successful in his claim, he needs to show only that it is at least as likely as not that his claimed disability began in or is otherwise related to service. See 38 U.S.C.A. § 5107(b). The Board finds that standard has been met in this case. In this context, the Board notes that the Veteran has reported having consistent symptomatology since service. See Charles v. Principi, 16 Vet. App. 374 75 (2002). His reports are both competent and highly probative. In sum, the Board is satisfied that the criteria for service connection have been met and service connection is established for a lumbar spine disorder and a neck disorder. In making this determination, the Board is not attempting to make an independent medical determination; rather, it is weighing the evidence of record and making a determination as to the probative value of such evidence. See Evans v. West, 12 Vet. App. 22, 30 (1998). When reviewing the evidence in its totality, the Board finds that the evidence in this claim is at the least in equipoise. Therefore, the Board finds that it must give the Veteran the benefit of the doubt, and grant his claim for service connection. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the above grant of direct service connection for a low back disorder and a neck disorder and the above noted favorable opinion by a VA examiner, the Board finds that service connection for a bilateral shoulder disorder and bilateral arm disorder on a secondary basis is warranted. Here, there is only one opinion regarding the etiology of these disorders. The VA examiner reviewed the Veteran's claims file and medical history in conjunction with his examination. The Board finds that the evidence presented by the VA examiner to be most probative regarding these claims. The examiner offered an opinion with rationale, and the finding stands uncontradicted in the file. As such secondary service connection for these disorders is warranted. ORDER Service connection for a back disorder, most recently diagnosed as lumbar strain with degenerative disc disease, is granted. Service connection for a neck disorder, most recently diagnosed as mechanical cervical pain and history of cervical degenerative disc disease, status post anterior cervical diskectomy and fusion, is granted. Service connection for a left arm disorder, diagnosed in March 2006 as chronic upper extremity dysfunctional pain syndrome, as secondary to service-connected disability is granted. Service connection for a right arm disorder, diagnosed in March 2006 as chronic upper extremity dysfunctional pain syndrome, as secondary to service-connected disability is granted. Service connection for a left shoulder disorder, most recently diagnosed as rotator cuff tendonitis, as secondary to service-connected disability is granted. Service connection for a right shoulder disorder, most recently diagnosed as rotator cuff tendonitis, as secondary to service-connected disability is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs