Citation Nr: 1617620 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 09-38 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected cervical spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from August 1980 to August 1984, October 2004 to April 2005, and October 2009 to October 2013. She also served in the National Guard. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Winston-Salem, regional office (RO) of the Department of Veterans Affairs (VA). This issue was among those previously before the Board in June 2015 when it was remanded for additional development. It has now been returned for further appellate review. The Veteran's claims for service connection for a thyroid disability; a left arm and shoulder disability to include as secondary to a service connected cervical spine disability; a right knee disability, and a left knee disability were also before the Board in June 2015. The claim for service connection for a thyroid disability was granted by the Board; the remaining claims were remanded for additional development. Service connection for each of these claims was granted in a December 2015 rating decision; the decision specifically noted that the grant for left upper extremity radiculopathy encompassed the claim for a left arm and shoulder disability. This represents a complete grant of service connection for each of these disabilities, and they are no longer on appeal. FINDING OF FACT The Veteran right shoulder pain has been attributed to her service-connected right upper extremity radiculopathy. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability to include as secondary to a service-connected cervical spine disability have not been met. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303(a), 3.310(a), 4.14 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Board finds that the duty to notify has been met because the Veteran was provided with complete VCAA notification in a September 2006 letter that contained all the information required by Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, it was provided to the Veteran prior to the initial adjudication of his claim. The Board also finds that the duty to assist has been met. At the request of the June 2015 remand, the Veteran was afforded a VA examination of her right shoulder. The Veteran's service treatment records have also been obtained for all periods of active service, and the record contains certification that there are no more service treatment records available. All VA treatment records have been obtained. She has not identified any other pertinent private medical records. Even though the August 2015 VA examiner did not answer the secondary service connection question posed by the Board's prior remand, the Board finds that this is harmless error because, as discussed in this decision, the Veteran's right should pain has been attributed to already service-connected disability. The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the undersigned engaged the Veteran and her representative in a discussion regarding the Veteran's claimed right shoulder disability, its relationship to active service, and to the service connected cervical spine disability. There was a discussion of the relevant evidence. Although the undersigned did not make any specific evidence suggestions, the failure to do so was harmless, as the June 2015 remand ordered an examination of the right shoulder in order to determine whether or not there was a current disability related to active service or the service connected cervical spine disability. The duties imposed by 38 C.F.R. § 3.103(c)(2), as explained by the Court in Bryant v. Shinseki, 23Vet. App. 488 (2010) have been met. As there is no indication that there is any relevant evidence outstanding in this claim, the Board will proceed with consideration of the Veteran's appeal. Service Connection - law The Veteran contends that she incurred a right shoulder disability during service. She testified at the February 2015 hearing that her injury is the result of an injury she sustained when exiting a helicopter in Iraq in 2010. She says she fell on her right side and that she has experienced right shoulder pain ever since this injury. The Veteran notes that the facility where the injury occurred had a limited medical staff, but that she was eventually told there was some arthritis in her shoulder and neck. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability resulting from disease or injury incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C.A. §§ 101(24), 106. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that she was told she has arthritis of her shoulder, and there is mention of questionable arthritic pain in the service treatment record. If arthritis become manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. This includes arthritis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker v. Shinseki. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. 38 C.F.R. § 3.310(b). In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The evidence includes an October 2001 letter in the Veteran's National Guard records from her private doctor. This letter notes that the Veteran was being followed and treated for mild right cervical radiculopathy which affected the right upper extremity. It was advised that she avoid strenuous exercises and physical training. A November 2002 Report of Medical History obtained for the National Guard shows that the Veteran answered "yes" to a history of painful shoulder, elbow, or wrist. The written explanation at the end of the questionnaire states that the pain in the right arm, shoulder, and neck was due to a pinched nerve. A Report of Medical Examination completed at this time found that the upper extremities were normal, although it was again noted that the Veteran was followed by a civilian doctor for a pinched nerve, and that she was using medication for treatment of the pinched nerve with pain to the right shoulder. A January 2003 letter from the Veteran's private doctor states that she had a proven pinched nerve in the cervical spine that could cause neck and arm pain. She was to avoid heavy activities or any activities that increased her pain. An October 2003 letter from the doctor repeated this information. A May 2003 treatment record states that the Veteran sustained a right trapezial muscle strain with right extensor tendonitis while helping unload field equipment. The record states that she was on inactive duty training at the time of the injury. November 2004 service treatment records state that the Veteran experienced right shoulder and arm pain with spasms. She was status post injury with a diagnosis of bone spurs and pinched nerve for four years. On examination of the right arm, sensation was normal and there was a full range of motion. The assessment was right arm muscle strain. A March 2005 service treatment record includes an assessment of right shoulder pain, tendinosis. A November 2009 service treatment record shows that the Veteran was seen for neck, back, and shoulder pain. The right shoulder was tender on palpation, as was the right upper trapezius. There was no swelling, erythema, or warmth. The Veteran did not have misalignment, and motion was normal without pain. No pain was elicited on impingement testing, and no instability was noted. The assessment was trapezoid muscle strain. The examiner explained that she had been training for the last five days and was now having upper back and trapezius pain, and she was released from duty that impacted this muscle. In an April 2010 service treatment record, the Veteran indicated she had been in theater for three months and had developed right shoulder pain, which was aggravated by repetitive motion and reaching overhead. There was no history of trauma. The range of motion was full and the apprehension tests were normal. The assessment was pain localized in the shoulder. The comments noted questionable arthritis pains versus impingement syndrome. An X-ray study was reportedly unrevealing. The Veteran said in a September 2010 service treatment record that she began to experience posterior neck and right shoulder pain during training. The neck pain radiated into the right arm. There was no diagnosis entered specific to the right shoulder. A December 2010 X-ray study states that the Veteran had a history of a fall on the right upper extremity in January with continued pain. Four views of the shoulder resulted in an impression of a normal right shoulder. February 2011 service treatment records show complaints of intermittent burning pain in the right shoulder and dorsal wrist. In November 2011, service treatment records show that the Veteran was seen after she lost her balance and fell, striking the right side of her body against her dresser. She continued to have pains that included right shoulder pain located deep in the joint. She said there were no previous shoulder injuries. On examination, there was no swelling or stiffness. The shoulder did not suddenly lock up, no popping was heard, there was no snapping, and the shoulder did not feel as if it would slip out of place. The assessment was joint pain, localized in the right shoulder. An X-ray study obtained at this time was negative. The Veteran continued to be followed for problems that included right shoulder pain over the next several months. January 2012 records note reduced range of motion. The shoulders appeared abnormal, and were rounded and subluxed in sitting. She had pain on all impingement testing and was unable to achieve 75 percent shoulder elevation bilaterally against gravity. The assessment was right shoulder pain most likely related to bilateral multidirectional shoulder instability. The Veteran continued to be seen on a regular basis for physical therapy for various orthopedic complaints that included right shoulder pain through May 2012. She continued to report chronic bilateral shoulder pain through at least March 2013. The Veteran underwent examination by a Physical Evaluation Board in June 2013. Although several disabilities including a cervical spine disability were noted, a separate right shoulder disability was not. The board determined that the Veteran was physically unfit and that she should be placed on permanent disability retirement. A January 2014 Persian Gulf Registry Examination notes the history of shoulder pain, which was said to have begun in 2010. The examination did not result in any specific diagnosis or assessment pertaining to the right shoulder. The Veteran was afforded a VA examination of her right shoulder in August 2015. The pertinent records were reviewed by the examiner. The Veteran reported that she developed intermittent pain in her shoulders after she fell on them in 2010. She also reported intermittent shooting pain and numbness down her arms and hands. On examination, the range of motion was normal without pain on weight bearing. There was no objective evidence of tenderness or pain on palpation, and no objective evidence of crepitus. Muscle strength testing was 5/5, and there was no muscle atrophy. A rotator cuff condition was not suspected, nor was instability or any joint condition. There was no impairment of the humerus. An X-ray study obtained at this time was normal with no evidence of arthritis. The examiner concluded by stating that the evaluation of the shoulders was normal. There was no pathology and no diagnosis. He added that the intermittent shooting pain and numbness in the arms and hands was due to radiculopathy of the upper extremities, which was already service connected. The Board finds that entitlement to service connection for a right shoulder disability is not warranted. The weight of the evidence does not show that the Veteran incurred a chronic right shoulder disability during service, and it does not show that she currently has a right shoulder disability. The Board does not dispute that the Veteran has long experienced pain in the region of her right shoulder. Rather, the Board finds that this pain is not due to a separate and distinct disability of the right shoulder, but is instead part and parcel of her current service-connected disabilities. The record shows that service connection has already been established for (1) cervical spine degenerative disc disease, and for (2) right upper extremity radiculopathy, De Quervain's syndrome, and limitation of right elbow pronation, residuals of lateral epicondylitis. The Veteran was seen on many occasions for right shoulder pain, and there is evidence of at least four injuries or exacerbations of this pain during inactive duty or on active service. The first occurred in May 2003 after unloading field equipment, the second was in November 2009 after training, the third after a 2010 fall, and the fourth following a 2011 fall. However, the statements from the Veteran's private doctor show that the Veteran was already followed for right shoulder pain resulting from her cervical spine disability prior to any of these events. Although diagnoses at the time included muscle strain, there is no evidence that any of these exacerbations resulted in a chronic muscle strain or other disability of the Veteran's right shoulder. Impingement testing produced pain in January 2012, but all repeat testing has been normal. A separate right shoulder disability was not shown on the June 2013 Physical Evaluation Board examination conducted a few months prior to the Veteran's discharge. An April 2010 record notes questionable arthritic pain, but X-ray studies conducted both during service and on the August 2015 VA examination are negative for right shoulder arthritis. Therefore, without an established diagnosis of arthritis, service connection on a presumptive basis is not for consideration. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This also precludes further discussion of continuity of symptomatology. The most common assessment of the Veteran's complaints during service was pain localized in the right shoulder joint. However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Most importantly, the August 2015 VA examiner found that the Veteran's shoulders were normal. He opined that the Veteran's shoulder and arm pain was due to her service connected radiculopathy, and indicated that she does not have a separate right shoulder disability or left shoulder disability. There is no competent medical opinion to the contrary, and it is consistent with both the earlier letters from the Veteran's private doctor as well as the service treatment records that show her right shoulder pain was always accompanied with neck pain. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. As there is no evidence of a chronic right shoulder disability that is separate from the right upper extremity radiculopathy for which service connection has already been established, service connection may not be granted. In this regard, the Board notes that the Veteran is already being compensated for symptoms related to right shoulder at a 40 percent rating under Diagnostic Code 8513. In reaching this decision, the Board stresses that it does not question the Veteran's reports of right shoulder pain. She is competent to report this pain, and her highly credible testimony is supported by the medical record. However, the Veteran is not shown to have any medical training, and she is not competent to provide evidence as to more complex medical questions addressing the etiology of right shoulder pain, as is the case here. The Board finds that the competent medical opinion has probatively attributed her pain to her radiculopathy, which is a disability for which she is already in receipt of compensation. The Board places much weight on this opinion provided by a medical doctor trained in the foresenic science of medical. As the preponderance of the evidence is against the claim, service connection is denied. ORDER Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected cervical spine disability is denied. ____________________________________________ P. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs