Citation Nr: 1636851 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 13-13 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for bilateral shoulder disabilities. 3. Entitlement to service connection for chronic fatigue syndrome, to include as a result of Gulf War service. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as a result of Gulf War service. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army from April 1985 to November 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2009 (neck and shoulders) and December 2013 (GERD and chronic fatigue syndrome) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was afforded a Board hearing in May 2016 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. The issue(s) of entitlement to service connection for bilateral shoulder disabilities, GERD and chronic fatigue syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his cervical spine degenerative disc disease/degenerative joint disease is a result of his military service. CONCLUSION OF LAW The criteria for service connection for a neck disability have been met. 38 U.S.C.A. §§ 1110 , 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the issue of entitlement to service connection for a neck disability given the fully favorable nature of the Board's following decision. Service Connection 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. 38 C.F.R. § 3.303. In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). During his May 2016 hearing, the Veteran testified that he began experiencing neck pain while on active duty. The pain began gradually and continued post service. He stated he received private treatment for his neck in the 1990s, as he did not realize he could receive care through the VA until years later. He reported he also went on sick call during service with complaints of neck pain. Service treatment records include a September 1985 complaint of "pain on right side of shoulder and back." However, despite describing the pain location as "back," the evaluation noted that he had full range of motion of his right shoulder and neck. He was assessed with a "sprain/strain." The record did not specify if he strained his neck, back, or shoulder. On his separation medical history, the Veteran did not report ongoing neck pain. The earliest VA treatment records regarding the Veteran's neck and shoulder area pain is from 2011. He had testified that he sought private treatment in the 1990s, but those private treatment records are not available in the record. In November 2012, the Veteran complained of increased neck pain for the prior week and stated he had suffered from on and off neck and shoulder pain since he was on active duty. An x-ray showed multilevel cervical degenerative disc disease. In March 2013, the Veteran was afforded a fee-bases VA examination (QTC). The Veteran reported that his neck pain began during physical training in service. After physical examination, the examiner opined that the Veteran's neck condition was less likely than not the result of his military service. The rationale was that although the Veteran complained of right shoulder pain in 1985, he denied a history of shoulder, or recurrent back pain during his 1991 medical history and he had a normal separation evaluation in September 1991. There was "no evidence in the reviewed medical records to support current exam findings in the absence of a history of chronic or recurrent symptoms during active duty military service." An x-ray showed cervical spine with showed loss of normal lordotic curve, early osteophytosis of C4-6, narrowing of C4-7 disc spaces with degenerative disc disease at C5-7, and impingement on neural foramina from small osteophytes at C4-6. It was noted that the Veteran's 1991 separation medical history does not include complaint of back, shoulder or neck symptoms; however, in reviewing the evidence of record, the Board was unable to find the 1991 separation evaluation cited by the 2013 fee-basis examiner. In June 2016, a private physician provided a medical opinion in support of the Veteran's claim. The Veteran was seen with a complaint of neck pain with decreased rotation to the right and pain with flexion. X-rays showed "cervical spondylosis, or cervical ostearthritis." "It is more than likely that spondylosis can be caused by the chronic wear and tear of working within his military service. [The Veteran's] job title is a truck driver; he has been driving for long hours with no power steering over the course of years as of September 1985 to November 1992." The physician suggested physical therapy. The Board finds that the Veteran is entitled to service connection for a neck disability. The 2016 private physician correctly noted that the Veteran served as a transport operator during his years of service. The Veteran complained of neck/shoulder pain in service in 1985, and he testified that he has had on and off neck pain throughout service and thereafter. The record contains conflicting medical opinions; however, as both opinions are supported by well-reasoned rationales, the medical evidence is in relative equipoise. As such, the Board will resolve reasonable doubt in the Veteran's favor, and finds that service connection for a neck disability is warranted. ORDER Entitlement to service connection for a neck disability is granted. REMAND GERD and Chronic Fatigue Syndrome On his June 2016 substantive appeal (VA Form 9), regarding his issues on appeal for service connection for GERD and chronic fatigue syndrome, the Veteran requested a Board videoconference hearing. Notably, the Veteran's May 2016 Board hearing did not address these issues as they were not yet on appeal (the Statement of the Case for these issues was mailed in April 2016). On remand, the Veteran should be scheduled for a video conference hearing at the Atlanta, Georgia RO. Bilateral Shoulders In March 2013, the Veteran was afforded a VA examination for his neck and shoulder disability claims. The examiner provided a negative opinion regarding the Veteran's claims because he did not report a shoulder disability during his separation medical history and he had a normal evaluation. The Veteran's separation medical history from 1991 is negative for shoulder complaints. The Board was unable to find a separation physical evaluation for the Veteran in the record, although one was cited by the 2013 examiner. As noted above, in 1985 the Veteran complained of right shoulder/back pain and was assessed with "strain/sprain." The Board notes the Veteran was also in a motor vehicle accident in 1989 with xyphoid displacement on x-ray and complaints of chest pain. As this decision grants entitlement to service connection for a neck disability, the possibility that the Veteran's shoulder disabilities may be secondary to his neck disability is a theory of entitlement that has not yet been addressed by medical examination. As such, on remand, he should be afforded another VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a videoconference hearing before the Board at the Atlanta, Georgia RO in accordance with his request, pertaining to his claims for service connection for GERD and chronic fatigue syndrome. The Veteran and his representative should be notified in writing of the date, time, and location of the hearing. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures. 2. Schedule the Veteran for a VA examination to address the Veteran's claims for service connection for bilateral shoulder disabilities. Following a review of the record, interview of the Veteran, and physical evaluation, the examiner should provide the following opinions: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's left and/or right shoulder disabilities are a result of his military service? b) Is it at least as likely as not (50/50 probability or greater) that the Veteran's left and/or right shoulder disabilities are caused or aggravated by his neck disability? The examiner must provide a rationale/explanation for each opinion expressed. 3. After the above is complete, readjudicate the Veteran's claim for service connection for bilateral shoulder disabilities. If a complete grant of all applicable benefits for each claim is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs