Citation Nr: 1752443	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  06-23 385	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected pulmonary tuberculosis.

2. Entitlement to a separate disability rating for left side pleurisy due to plural scarring as a result of pulmonary tuberculosis.


REPRESENTATION

Appellant represented by:	Connecticut Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

C. Casey, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1972 to February 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.

The Veteran testified in support of this claim during a video hearing held before a Veteran's Law Judge in July 2013.  A copy of the hearing transcript is of record. The Veterans Law Judge who conducted that hearing is no longer employed by the Board. The Veteran was offered another Board hearing, but the Veteran waived another hearing and asked the Board to consider his case on the evidence of record.

In April 2014, the Board issued a decision which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Remand (JMR), the Court issued an order in April 2015 that remanded the case to the Board for adjudication, and issuance of a new decision. In December 2015, the Board remanded the case and undertook additional development with respect to the claim on appeal. In February 2017, the Board again remanded the claim for further development and a new VA opinion.


FINDINGS OF FACT

1. The probative evidence of record does not show that the Veteran's currently diagnosed left upper extremity cervical radiculopathy disorder is related to his active military service or any disability incurred therein.

2. The probative evidence of record indicates that left side pleurisy due to plural scarring is a residual of the service-connected pulmonary tuberculosis disorder.


CONCLUSIONS OF LAW

1.  A left upper extremity cervical radiculopathy disorder was not incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).

2.  The criteria for a separate compensable rating for left side pleurisy due to plural scarring associated with the service-connected pulmonary tuberculosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.14, 4.89, 4.97, Diagnostic Code 6732 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Specifically, VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim, which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). VA is also to assist this claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion.  38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). 


Here, the Veteran does not assert that VA violated its duty to notify, that there are any outstanding records that need to be obtained on his behalf, or that the VA examinations he underwent in support of this claim were inadequate. No further notification or assistance is thus necessary. 


Legal Criteria

The Veteran contends that his current left shoulder pain is due to his service-connected pulmonary tuberculosis disorder. The Veteran also contends that his current left side pleurisy is a due to his service-connected pulmonary tuberculosis disorder, and warrants a separate compensable disability rating.

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(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may also be established on a presumptive basis for the chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases" and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; 38 C.F.R. § 3.303 (b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Id. (observing that a claim for a chronic disease "benefits from presumptive service connection ... or service connection via continuity of symptomatology").

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995).

Left Shoulder Disorder

The Veteran contends that his current left shoulder disorder, which has been diagnosed as cervical radicular pain, is due to his service-connected pulmonary tuberculosis disorder. Specifically, he asserts that he has experienced left side pain as a result of his service-connected disorder.

The Veteran does not contend that his current left shoulder disorder is related to his active service. In this regard, his service treatment records (STRs) are negative for complaints, treatment, or a diagnosis of a left shoulder disorder.

At a VA examination in November 2013, the Veteran reported that he experienced radiating pain from his neck to his left shoulder. Upon examination and review of the Veteran's claims file, the examiner indicated that the Veteran's current left shoulder pain that radiates from his neck was "most likely" cervical radicular pain that was unrelated to the Veteran's service or a service-connected disorder.

In December 2015, the Board undertook additional development with respect to the claim on appeal. After finding the November 2013 VA opinion inadequate because it did not consider the Veteran's service treatment records (STRs), an addendum opinion was sought from the same examiner to determine whether any previously or currently diagnosed left shoulder disorder was related to the Veteran's active military service, or due to or aggravated by the Veteran's service-connected pulmonary tuberculosis disorder.  The examiner was asked whether any left shoulder disorder was merely a symptom of another disorder and not a separate and distinct disorder.  In rendering the opinion, the examiner was asked to comment on specified STRs from October and November 1974.  The March 2016 VA opinion stated that the Veteran's left side pain in the chest wall is at least as likely related to pleurisy and is less likely related to left shoulder pain, which is most likely radicular or musculoskeletal in nature. 

The RO determined that the March 2016 VA opinion did not comply with the directives of the Board's remand and subsequently obtained two more addendum opinions in May 2016. The May 20, 2016 VA opinion stated that left shoulder symptoms are not related to pleuritic pain, because there is a lack of evidence from the medical community that pleuritic pain can affect the shoulder or is related to the shoulder. A VA addendum opinion dated May 24, 2016 clarified that the Veteran's shoulder symptoms are less likely than not related to left pleuritic chest pain. 

The Board found that the March 2016, May 20, 2016, and May 24, 2016 opinions were conflicting and confusing in nature and were thus inadequate for the purpose of determining service connection at this juncture. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

In March 2017, a VA medical examiner reviewed the Veteran's claims file and found a lack of evidence of any left shoulder condition. Rather, the examiner found evidence only of a neck condition caused by cervical radiculopathy, which is less likely correlated with tuberculosis residuals. The examiner noted that the Veteran's left shoulder pain radiates from the neck, which is most likely radicular pain. The examiner noted that cervical radiculopathy is a neck condition, not a shoulder condition, and the referred shoulder pain which is due to cervical radiculopathy is not anatomically near the left pleuritic chest wall. While the reported pain in the left pleuritic chest wall is most likely pleurisy, related to service connected tuberculosis, the left shoulder pain is unrelated to tuberculosis. 

The examiner specifically considered STRs which show biopsy and thoracentesis for pleural tuberculosis in October 1974, and complaints of left upper ribcage pain noted in October 1974 and November 1974. The VA examiner concluded that because the Veteran had a neck condition, but no shoulder condition, the examiner had no opinion to provide as to whether a shoulder condition is related to service-connected pleural tuberculosis.  In sum, the March 2017 VA medical examiner concluded that the Veteran's shoulder pain was due to cervical radiculopathy, a disorder of the neck, and was not likely related to the Veteran's current diagnosis of pleurisy, which caused left chest wall pain. 

After reviewing the evidence of record, the Board agrees that the Veteran has a disorder manifested by pain in the left shoulder. However, the evidence also establishes that this left shoulder pain is not the result of an injury or disease of the left shoulder itself. Rather, the medical evidence shows that the Veteran has a neurological disorder known as radiculopathy. The Veteran's cervical spine disorder has affected the nerves that run from the spine to the shoulder, and this disorder manifests itself through neurologic pain of the left shoulder even though there is no structural disorder of the left shoulder.

As such, the probative evidence of record does not show that the Veteran's current left shoulder disorder is related to his active duty service or caused or aggravated by a service-connected disability. Furthermore, the medical evidence of record does not show a diagnosis of cervical radiculopathy within one year of separation from service. The March 2017 VA examiner, after thoroughly reviewing the Veteran's claims file, and considering the Veteran's reported history and lay assertions, opined that the Veteran's current left shoulder pain that radiates from his neck was more likely cervical radicular pain, unrelated to the Veteran's service or a service-connected pulmonary tuberculosis.  The Board accords a significant probative value to the March 2017 VA examiner's opinion because it was rendered by a physician and is supported by a well-reasoned rationale.  Further, there is no medical opinion of record to the contrary.

To extent that the Veteran contends that his left shoulder disorder was caused by his service-connected pulmonary tuberculosis disorder, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a left shoulder disorder. The nature or cause of a left shoulder disorder is not a simple question that can be determined based on mere personal observation by a lay person. The Board therefore finds that whether the Veteran's left shoulder disorder is related to or was caused by his military service or any disability incurred therein does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge.  See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316.  It is not shown otherwise that the Veteran possesses the ability, knowledge, or experience to provide such an opinion, as opposed to observed continuity-of-symptomatology.  38 C.F.R. § 3.159(a)(2); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Accordingly, the Board finds that the Veteran's lay statements as to medical causation are not competent evidence to establish service connection for a left shoulder disorder.  

In the absence of competent evidence of a left shoulder disorder in service or within one year of separation from service, or competent and probative evidence of a nexus between the Veteran's current left shoulder disorder and in-service duties or a service-connected disorder, service connection is not warranted for the Veteran's current left shoulder disorder. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the evidence is not in relative equipoise. Accordingly, although grateful for the Veteran's honorable service, the Board concludes that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied.





Left Side Pleurisy

The Veteran contends that his current left side pleurisy is a due to his service-connected pulmonary tuberculosis disorder. He contends that such disorder warrants a separate compensable disability rating.

The Board notes that the Veteran's service-connected pulmonary tuberculosis disorder is rated as 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6732, the diagnostic code for pleurisy, tuberculosis, active or inactive.  Diagnostic Code 6732 indicates that the Veteran's service-connected disability is to be rated pursuant to 38 C.F.R. § 4.89, which addresses ratings for inactive pulmonary tuberculosis.  In this regard, the Veteran's current 10 percent rating for his inactive service-connected pulmonary tuberculosis is a rating based upon his residuals, namely, his left side pleurisy with pleural scarring, shortness of breath, and complaints of chest pain, as noted by the RO in the rating decision on appeal.

The evaluation of the same disability or the same manifestation under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions.  Esteban v. Brown, 6 Vet. App. 259 (1994).

As noted above, the Veteran's service-connected pulmonary tuberculosis disorder is currently rated as 10 percent disabling based upon residuals of such disorder, to include left side pleurisy with pleural scarring. Here, as the Veteran has been awarded compensation for residuals of pulmonary tuberculosis, the Board finds that he cannot receive a separate service connection for left side pleurisy as a disability in its own right. A separate rating for left side pleurisy would constitute pyramiding because it is a manifestation of the same disability. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 259.

In reaching this decision, the Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran's claims. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a left upper extremity cervical radiculopathy disorder is denied.

A separate rating for left side pleurisy due to scarring as a rule of pulmonary tuberculosis is denied.




____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs