Citation Nr: 1752395 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-33 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for a left shoulder disability. In February 2017, the Veteran testified before the undersigned Veterans Law Judge in a video-conference hearing; a transcript of the hearing is associated with the claims file. In August 2017, the Board remanded the claim for further development, specifically to obtain a VA opinion in regards to the nature and etiology of the Veteran's left shoulder disability. For the reasons indicated in the discussion below, the Board finds that the RO substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's left sternoclavicular strain is related to active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left sternoclavicular strain are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection 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 service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Consistent with this framework, service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Moreover, a Veteran may establish service connection through a demonstration of chronicity or continuity of symptomatology under 38 C.F.R. § 3.303(b), but only if service connection is for a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Arthritis is one such disease. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records (STRs) document an enlistment report of medical examination and history with normal clinical evaluation of the shoulder and upper extremities. August 1967 records reflect that the Veteran jumped out of a truck to avoid being blown up by aviation fuel. He was sent for treatment of abrasions on the right shoulder. In October 1967, the Veteran complained of pain in the left side of his neck and chest. In December 1967, the Veteran reported that he had been in good health until the August 1967 motor vehicle accident (MVA) and that since then he had been plagued by, amongst other things, feelings of tightness in his chest and pain and tenderness over the left sternoclavicular joint and sternocleidomastoid muscle. Examination of the neck and chest was normal, and the neurologic examination was normal. In January 1968, the Veteran complained of pain over the left shoulder, neck, and sternum, and stated that despite reporting for treatment he had received "very little relief." A March 1968 report of medical examination noted no shoulder or upper extremity problems, but in his report of medical history the Veteran reported swollen and painful joints; arthritis/rheumatism; and bone, joint, or other deformity. July 1968 records noted that in approximately May 1967 the Veteran jumped out of truck and injured his head. He was hospitalized for four to five days, and later noted muscle stiffness in the anterior neck, left side, with short jabbing pain. There was normal contour to the cervical spine, and peripheral reflex was normal. An October 1968 VA examination report reflects an injury to the right side of the face and right shoulder when the Veteran jumped from an army truck in August of 1967. Since that time, the Veteran noted pains in the anterior chest, left neck, and left arm. The pain was episodic, usually beginning in the mornings on arising, and lasting 48 to 72 hours; no tenderness was noted. The Veteran stated that he felt that the left side of his neck was swollen at times, and that the pain was relieved somewhat by bending his neck; however, rotating, extending, or flexing the neck too far caused increase in the pain. The Veteran reported that coughing sometimes caused pain in the left sternoclavicular area, and sleeping on the left side sometimes caused pain in the area. There was no history of sensory or motor loss during such episodes. During the examination, there was no tenderness or abnormal movements of the muscle. The deep tendon reflexes were active and bilaterally equal throughout, superficial reflexes were normal, and no pathological reflexes were obtained. Sensory examination was well within normal limits; the cranial nerves were intact; and there was normal limitation in movement of the neck, left shoulder, left arm, and right arm. The Veteran complained of some pain at the extreme rotation, flexion, and extension of the head or the neck. He also noticed some pain in the left sternoclavicular area with abduction against force in the left shoulder area. The examiner did not provide a diagnosis. A private treatment record in September 1970 reflects the 1967 MVA where the Veteran struck the right side of his face and right shoulder. He reported that since then he had had swelling and pain in the upper chest and some tightness on the left side of his neck. Examination revealed difficulty swallowing and short-winded breathing. The pain in the left side of the neck continued, and the neck was swollen and tender over the left side of the neck. The Veteran had normal chest in size and shape, and swelling and tenderness over the left sternoclavicular area. The examiner diagnosed residual scars on the right side of forehead and face, sprain of the left sternoclavicular area, and residuals of a sprain of the neck. VA treatment records in January 1971 reflect pain in the left subclavicular area. The Veteran reported that he continued to have problems with his neck and left shoulder since the 1967 MVA. He described the pain as sometimes being a "flash" and other times continuous anywhere from one day to several days. He felt a "drawing sensation" on his neck/jaw; and stated that the left arm did not feel the same as the right arm, explaining that his fingers tingled. There was mild pain on palpation of the left sternoclavicular joint, and the examiner's impression was left muscle spasm with psychomotor component. A May 1975 VA neuropsychiatric examination report reflects that the Veteran worked in a factory as a punch press operator, but thought that he would change his job because of pain in his left shoulder and arm. VA treatment records in May 1990 reflect that the Veteran had chronic pain in the neck, which varied in severity. He described radiation of pain into the left arm and occasionally into the right arm, and feelings of numbness and tingling in the left thumb. The impression was service-connected muscle spasms of cervical spine, now with complaints of radicular-type pain of the left arm and of numbness and tingling of the left thumb. In July 1991, the Veteran complained of left shoulder pain with shooting pain down his left arm occasionally, and left paresthesias in the thumb and second finger. The assessment was neck spasm with possible radiculopathy. A February 1992 VA examination report documents that the Veteran had had problems with his neck and left arm pain since his MVA. He complained of pain in the back of the neck and head and between the shoulder blades, which radiated to the left shoulder, the left arm, hand, and to the thumb and index finger. Ranges of motion of both shoulders, elbows, hands and wrists were within the normal range; and biceps and triceps sensations were all depressed but present. The examiner found that the Veteran had multiple cervical discopathies, and that his left arm, hand, and forearms problems were "actually caused by his cervical multiple discogenic disease." A March 1996 VA examination report indicates that the Veteran was a poor historian due to his memory deficiency. The Veteran reported that he was in a MVA in 1967 and thought that he might have been hospitalized. He stated that he had a cut above his right eye and had had some trouble with his left shoulder and neck muscles. On examination, the bilateral shoulders had full range of motion; and the reflexes of the left side, especially the forearm extensor, was slightly depressed on the left compared with the right. He had a good grip and no apparent sensory deficit. He had patches of gray skin that he called a rash, and one over the left shoulder that was "quite discrete." There was a small nodule in the area of the left trapezius muscle superiorly, which felt like a bite of some kind, and the Veteran did not seem to know whether it was getting bigger or smaller. The examiner found that the shoulder symptoms were more likely related to the shoulder muscles, and especially the cervical group, than to intrinsic bone or joint pathology. The impression was an unremarkable examination of the left shoulder. A July 1996 VA examination report documents tightness in the neck, which varied in amount and from side to side. The Veteran reported that the left side hurt more frequently than the right, and that on occasion he would be holding a glass and it would slip out of his left hand. He was unable to state whether this happened because of weakness or poor sensation. X-rays of both shoulders revealed no bony abnormalities, and the impression was degenerative disc disease (DDD) of the cervical spine. The examiner opined that the Veteran's current symptoms were due to DDD of his cervical spine, which was not present following the 1967 MVA. The examiner noted that there were numerous references to his cervical muscle spasm in the records, but that x-rays in 1968 and 1970 did not show evidence of DDD or bony pathology. The examiner also opined that the increasing severity of his cervical DDD was not a result of his service-connected cervical muscle spasm. He concluded that all of the Veteran's current symptoms, to include his left shoulder problems, were attributable to his DDD and none to his service-connected cervical muscle spasm, which he viewed as a temporary problem following the MVA. A May 2011 VA examination report documents the Veteran's 1967 MVA and his report of continuous complaints of left neck spasms associated with a globus phenomena. The Veteran was evaluated in May 2010, at which time he was assessed with degenerative joint disease (DJD) of the cervical spine with muscle spasm. Since that time, an otorhinolaryngologist and a neurologist examined the Veterans and believed that he might be suffering from muscle spasms of the sternocleidomastoid or digastric musculature. The Veteran was evaluated by VA Neurology staff in January of 2011 for intermittent tightness of the cervical muscles. The neurologist found that the Veteran's electromyography (EMG) of the cervical spine was within normal limits with no evidence of radiculopathy, normal cranial nerve examination, good muscle tone and bulk, and no abnormal motor or sensory findings. The Veteran could not state why he injured his right shoulder during service but nevertheless complained about his left neck and left shoulder. He denied radiating pain or loss of grip strength, and rated his left should pain as a seven out of 10. There was a surgical scar 7 centimeters in length on the anterior head of the left sternocleidomastoid muscle running cephalad to caudad without significant keloid formation, skin, or muscle breakdown. The scar did not demonstrate paresthesias or allodynia on palpation, and did not limit his range of motion. There was also an inclusion cyst noted on the left shoulder, which was painful to touch; the Veteran stated that the lesions "came and went" and that he did not desire referral for the excision. Peripheral pulses were full and bilaterally symmetric; and there was good muscle tone and bulk of the upper extremities bilaterally, no weakness with a motor strength of 5/5, no resting muscle fasciculations, and no resting or intention tremor. The shoulder joints were stable. Range of motion on the right was forward flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, internal rotation to 90 degrees with elbow flexion and forearm supination and pronation intact. Range of motion on the left was forward flexion to 180 degrees, abduction to 140 degrees, external rotation to 70 degrees, internal rotation to 80 degrees with elbow flexion and forearm supination and pronation intact. The Veteran reported discomfort at the extent of the range of motion for external rotation and abduction, and repetitive movement did not increase his discomfort or lead to an improvement or decrement in the range of motion. X-rays of the shoulders revealed DJD without fracture or other significant pathology. The examiner diagnosed, among other things, DJD due to aging and muscle spasms. A December 2011 VA examination report indicates that the Veteran had muscle spasms in the left side of his neck since his 1967 MVA, but that there was no documented left shoulder injury during service. The examiner noted that the Veteran was evaluated in July 1991 for muscle spasms in the left side of his neck and left shoulder pain, and that the majority of his medical records since then addressed the muscle spasms in his neck and not necessarily the left shoulder. The examiner noted that May 2011 x-rays of the left shoulder revealed no acute fracture or dislocation, but that there was some irregularity of the greater tuberosity that could be due to previous injury, although there were no significant degenerative changes or calcifications in the soft tissues. As such, the examiner opined that the Veteran's left shoulder condition was less likely than not caused by or a result of his military service since there is no evidence to support this in his records. A December 2012 VA scar examination report documents increased muscle spasm and pain over the left sternocleidomastoid muscle where he had a release surgery. The Veteran was reporting a worsening of pain since his last examination, along with spasms rated at a six out of 10. Examination of his shoulder area revealed normal sensory testing and no radiculopathy. During his February 2017 hearing, the Veteran testified about his 1967 MVA and that he subsequently had neck muscle pain and muscle spasms and surgery around 1986 to release the neck muscles. The Veteran testified that the neck injury made the left shoulder worse because it made it harder to move the shoulder over time. An August 2017 VA examination report reflects diagnoses of osteoarthritis of the left shoulder, sternocleidomastoid muscle spasms, sternoclavicular strain, and clavicular fracture (unknown date). The VA examiner found that the Veteran was currently symptomatic from the osteoarthritis, which was not a progression from previously diagnosed issues. The examiner then discussed the claims file, noting the Veteran's x-rays, and stated that if the Veteran had had significant injury to his shoulder at the time of the 1967 MVA, the 1996 x-rays clearly would have shown radiographic changes. However, x-rays were normal until 2011, when there were some mild changes on x-rays, and it was not until 2017 when more progression was noted. In addition, the examiner noted that the changes seen in 2011 started in both shoulders, and there was no reason to suggest that there was a specific left shoulder disability. Moreover, as the changes started after 1996, the examiner opined that it was more probable that these were chronic degenerative-type injuries or that the Veteran had multiple injuries to both his shoulders after 1996. In addition, the clavicle x-rays only suggested that there had been a clavicle injury at some point, but did not date the injury, and there were no clavicle issues prior to 2017. As such, the examiner opined that it was less likely than not that the left shoulder disability was due to or a result of service, to include the 1967 MVA. In addition, the examiner found that the left shoulder disability was unrelated to the Veteran's service-connected cervical muscle spasms. The examiner noted that there were bilateral changes of the shoulders, and x-rays indicated that the Veteran had injuries over the years since he left the military. The examiner opined that these post-service injuries were more likely the cause of his shoulder disability because the service-connected cervical spasms could have caused pain towards the shoulder but would not be a shoulder disability. The examiner also noted that the Veteran had some degenerative arthritis of the left shoulder, which started between the 2011 and 2017 x-rays, and the 1967 MVA injury would have caused an issue much sooner. It was also very possible that the Veteran had long-standing cervical spasms causing pain around the shoulder but without a shoulder condition for years. As such, it was less likely than not that the Veteran's current left shoulder disability was related to, or due to or was aggravated by, his service-connected cervical muscle spasms. Upon review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left sternoclavicular strain is etiologically related to his military service. As an initial matter, the Board notes that the Veteran has been diagnosed with left shoulder DJD, sternocleidomastoid muscle spasm, sternoclavicular strain, and a clavicular fracture of an unknown date. As such, he has a current disability and meets the first criteria for service connection. In addition, STRs reflect complaints of left shoulder pain. Specifically, in December 1967, the Veteran complained of tightness in his chest and pain and tenderness over the left sternoclavicular joint; and in January 1968, the Veteran complained of pain over the left shoulder, neck, and sternum. In addition, in his March 1968 report of medical history the Veteran reported swollen and painful joints; arthritis/rheumatism; and bone, joint, or other deformity. As such, there was an in-service injury and the Veteran meets the second criteria for service connection. Therefore, the Veteran's claim turns on whether there is a nexus between the Veteran's in-service complaints and current disabilities. Concerning the Veteran's diagnosis of clavicle fracture, the Board notes that the evidence does not show diagnosis, treatment, or complaints of a clavicle fracture during service. To the contrary, x-rays during service showed no bony abnormalities of the chest, and post-service records did not reveal a clavicle problem until 2017. As such, the Board finds that there is no in-service clavicle fracture or evidence that the current clavicle disorder is related to service, and service connection for a clavicle fracture is therefore not warranted. In regard to the Veteran's left shoulder DJD, the Board notes that the evidence first documented left shoulder arthritis in December 2011, 43 years after service and there is no evidence that there were symptoms during service or the one year presumptive period that were early manifestations of arthritis. As such, service connection for arthritis is not warranted under the provisions of 38 C.F.R. § 3.303(b) or 38 C.F.R. § 3.307. Nevertheless, the Veteran may still establish service connection on a direct basis. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Here, the July 1996 VA examiner concluded that the left shoulder symptoms were due to the Veteran's cervical DDD, which was not related to his service-connected cervical muscle spasms; the March 2011 VA examiner diagnosed DJD due to aging; and the August 2017 VA examiner provided a negative nexus opinion in regards to both direct service connection and secondary service connection due to the Veteran's service-connected cervical muscle spasms. The Board notes that the VA examiners explained the reasons for their conclusions based on an accurate characterization of the evidence of record, and their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). As such, service connection for left shoulder DJD is not warranted. However, the Board notes that none of the VA examiners opined whether the Veteran's left sternoclavicular joint strain was related to service or to his service-connected cervical muscle spasm. The Veteran is competent to state that his left shoulder pain started during service and has been continuous since his separation. See Jandreau, 492 F.3d at 1377. In addition, the Board finds that the claims file corroborates the Veteran's statements concerning his continuous left sternoclavicular joint strain. In October 1968, the Veteran complained of pain in the anterior chest, left neck, and left arm, specifically in the left sternoclavicular area; and the examiner noted pain in the left sternoclavicular area with abduction against force in the left shoulder area. In September 1970, the physician diagnosed sprain of the left sternoclavicular area. Treatment records in January 1971 document mild pain on palpation of left sternoclavicular joint, and records in May 1990 and July 1991 reflect left shoulder and arm pain. In addition, records from 1996 through the present continue to note left shoulder problems, and the August 2017 VA examiner specifically noted diagnosis of left sternoclavicular joint strain. Given the notations of in-service left sternoclavicular joint pain, and continuity of sternoclavicular joint symptoms, and absence of conflicting evidence, the evidence is at least evenly balanced as to whether the Veteran's sternoclavicular joint strain is related to active military service. Buchanan, 451 F.3d at 1336 (lay evidence may suffice to prove service connection on its own merits). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for left sternoclavicular joint strain is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs