Citation Nr: 1805603 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-00 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left hip disorder. 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had active military service from August 1979 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in July 2014. A transcript of this hearing is associated with the claims file. Thereafter, the Board remanded the Veteran's claims for additional development in October 2014. The Veteran's appeal was returned to the Board in April 2015. After reviewing the development conducted on remand, the Board determined that, although documentary development was complete, there remained medical questions that required answering before a decision could be rendered. Therefore, the Board sought a VHA medical opinion pursuant to 38 C.F.R. § 20.901. Such opinion was received in September 2017. The Veteran and his representative were notified of such opinion later that month, and the Veteran was given an opportunity to respond. See 38 C.F.R. § 20.903. With regard to the Veteran's representation, the Board notes that, in December 2016, the Veteran submitted a new VA Form 21-22a in favor of Attorney Michael J. Woods. However, the submission of this VA Form 21-22a was more than 90 days after the Board's appeal notification letter, which was sent in May 2015. Thus, in order to change his representation for this appeal, the Veteran had to show good cause for the change, which he has not done. See 38 C.F.R. § 20.1304. Consequently, the Board does not accept Attorney Woods' representation of the Veteran in the present matter on appeal, although he still represents the Veteran on other matters he also has pending before VA at this time. Rather, the Disabled American Veterans remains the Veteran's representative on appeal. FINDINGS OF FACT 1. The Veteran's left hip osteoarthritis is likely related to his active military service. 2. The Veteran's current left shoulder disorder is not related to his active military service, and arthritis of the left shoulder was not manifest within the first postservice year. CONCLUSIONS OF LAW 1. The criteria for service connection for left hip osteoarthritis are met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for disorders of the left hip and left shoulder that he claims are due to injuries sustained during his active military service from August 1979 to March 1988 with the U.S. Army as a Cannon Crewman. With regard to the left hip, he reports that he injured it in 1983 while playing basketball when he fell on his buttocks resulting in an injury to either a nerve or a vein and because of which he was unable to walk for a week or so. With regard to the left shoulder, the Veteran reports that he injured it during field training in or around 1980 in that he "pulled his shoulder out of joint" in trying to lift an artillery round (see December 20, 2009 Notice of Disagreement; see also December 4, 2015 Correspondence "we were in the field training when I lifted up a round and pop my shoulder out of place") or while he was "carrying some field artillery rounds and misstepped" jarring his shoulder and popping it out of place (see September 18, 2014 Hearing testimony). He has stated he subsequently had recurrent episodes while in service of his shoulder popping out of joint, but that he never sought treatment for these episodes. VA treatment records show the Veteran's treating physicians have diagnosed him to have osteoarthritis of the left hip and impingement syndrome and/or rotator cuff tendonitis/tendinosis/tendinopathy of the left shoulder. See May 4, 2010, January 16, 2016 and April 9, 2016 Orthopedic Surgery notes. The May 2010 Orthopedic Surgery note also indicates that X-rays showed the left hip was fairly well preserved; however, it appears to have an accessory ossicle/old injury at the left acetabulum. The most recent X-rays of the left hip taken in June 2015 demonstrate there is a "large os acetabuli" and mild degenerative changes in the left hip. X-rays of the left shoulder taken in May 2010 show moderate degenerative changes in the acromioclavicular joint and chondrocalcinosis. X-rays taken in April 2015 of the left shoulder demonstrated mild inferior glenohumeral degenerative changes; mild to moderate acromioclavicular arthrosis; and a small inferior projecting acromioclavicular osteophyte mildly narrowing the rotator cuff outlet. Impression was glenohumeral osteoarthritis. In contrast, in March 2015, the Veteran underwent VA examination in relation to his claims for service connection for his left shoulder and left hip conditions as a result of which the VA examiner diagnosed him to have calcium pyrophosphate deposition disease (CPPD). The examiner set forth in detail her reasoning for making this finding in her report and the Board will not repeat it here for the sake of brevity. The Board observes, however, that the VA examiner concluded that the Veteran's CPPD arthropathy was initially diagnosed in his knees, followed by multiple other joints and his back; and that his CPPD was not present during active duty, was not aggravated beyond it's normal course by his military service, and was more likely to have caused the arthritis of various joints that heretofore has been thought to be degenerative in nature. Thus, she opined that it is less than 50 percent likely that the Veteran has sequelae to former injuries or overuse of the left hip and shoulder due to his military service. In May 2015, the Veteran saw a new orthopedist for his left shoulder pain and was assessed, pursuant to X-rays, to have osteoarthritis of the glenohumeral joint of the left shoulder. A September 2015 follow up note remarks that the Veteran has left shoulder aching pain with remote history of left shoulder dislocation sustained while in the military; now X-rays show changes consistent with post traumatic osteoarthritis and clinically with aching pain. In October 2015, the Veteran requested referral to see Rheumatology, indicating he had seen one previously and would like to see one again due to having lots of pain in multiple joints and being unable to walk or work. Consult requests made to Rheumatology indicate the Veteran was referred due to having polyarthritis with a +RF and +ANA without a clear diagnosis. His case was initially reviewed by Rheumatology in January 2016. It was thought that it is less likely that he has Rheumatoid arthritis and that most of his joint pains seem to be due to osteoarthritis despite the positive ANA because that alone does not indicate an autoimmune disease and the Veteran had no other concerning features for a connective tissue disorder. In March 2016, the Veteran underwent Rheumatology consultation with full work up. The treating physician commented that, in talking with the Veteran, it sounded like he had injuries that to him led to the joint pains but it was hard to figure out if there is an inflammatory component to his pain given his inability to give a history of whether he had improvement on previous medications, a positive ANA with nuclealor pattern, and significant family history (his sister has Lupus). The supervising physician agreed that it appeared that the Veteran's symptoms were largely, but not entirely, related to injury and subsequent osteoarthritis; however, the positive ANA was thought to be interesting and at least raise the question of an autoimmune diathesis as well requiring work up. Notably, some of the labs taken at that time were indicative of inflammation, and the Veteran was prescribed Hydroxychloroquine (HCQ), which he reported had improved some of his pain at an April 2016 Orthopedic follow up visit. However, on follow up with Rheumatology in June 2016, his physician concluded that, at this point, he did not think the Veteran has any type of connective tissue disease because all of his panels except his repeat ANA came back negative, but he decided to keep the Veteran on the HCQ to see if it continued to help him. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet.App. 247 (1999). For chronic diseases listed in 38 C.F.R. § 3.309(a) the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases, like arthritis, that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay 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 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Left Hip Disorder The Board requested a VHA medical opinion noting that it was unclear as to what the Veteran's current diagnosis is because the VA treatment records show a diagnosis of osteoarthritis (degenerative arthritis or degenerative joint disease) but a March 2015 VA examiner diagnosed the Veteran to have calcium pyrophosphate deposition disease (CPPD). The Board notes the 2015 examiner essentially stated that the Veteran's arthritis (in multiple joints) has been misdiagnosed as degenerative in nature and instead is CPPD. Consequently, the first question for the VHA medical expert was with regard to what is the correct diagnosis of the Veteran's current left hip disorder. The Board also requested a medical nexus opinion as to whether any currently diagnosed disorder is related to the Veteran's active service. Essentially, the VHA medical expert stated in the September 2017 opinion that the Veteran has osteoarthritis, not CPPD, but that it is impossible to determine whether he has developmental or posttraumatic secondary osteoarthritis. In other words, the clinician stated that it is impossible to state whether the findings of the "os acetabuli" were significant enough to correlate his injuries with the current left hip disorder; however, if the Veteran's verbal testimony that he sustained an injury to his hip in 1983 is taken into account, then the clinician believes it is safe to assume that he at least had secondary posttraumatic hip arthritis or this in addition to developmental arthritis. Therefore, it is this clinician's opinion that the Veteran's hip disorder is related to his active service at least with a 50 percent probability. Based on the foregoing medical opinion, the Board finds that the Veteran's left hip osteoarthritis is at least as likely as not related to his active military service. Service connection is, therefore, granted. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Left Shoulder Disorder As to the Veteran's left shoulder disorder, as with the left hip disorder, the evidence also placed into question the diagnosis of the left shoulder disorder and whether it is related to service. The September 2017 VA medical expert appears to agree with the diagnoses in the VA treatment records based on the imaging studies showing degenerative changes in the acromioclavicular and glenohumeral joints (see May 2010 and April 2015 Orthopedic Surgery notes), and tendonitis/tendinopathy/ tendinosis due to additional rotator cuff degenerative changes shown on magnetic resonance imaging (MRI) in June 2015 (i.e., interstitial tear of the anterior supraspinatus, tendinosis of the subscapularis tendon insertion, and tendinosis of the intra-articular biceps with an assessment of biceps tendonitis). This clinician concluded that, based on the radiology reports and on his assessment of the available images, the rotator cuff interstitial and bursal wear and tear are more consistent with tendinopathy and partial injury and appear to be more age-related changes within the rotator cuff rather than secondary to an acute trauma or recent or remote injury. He explained that, although there is scientific evidence for a causal relationship between the repetitive trauma to the shoulder and impingement syndrome or rotator cuff tendonitis and/or injury, it is not safe to assume that there is at least a 50 percent probability that the Veteran's current shoulder disorder is related to his active service because the changes in the rotator cuff as seen on the June 2015 MRI are usually age-related tear and wear that is very common in the general population. Thus, in this clinician's opinion, the interstitial injury with partial bursal surface tear associated with rotator cuff tendinopathy seen on the Veteran's MRI are more likely age-related rather than as a result of a remote service-related injury. As for the March 2015 VA examination, as previously mentioned the VA examiner diagnosed the Veteran to have CPPD rather than osteoarthritis. However, in his September 2017 medical opinion, the VA medical expert opined that, based on the evidence in this case, CPPD is a very unlikely diagnosis for this Veteran. In weighing these medical opinions, the Board finds the September 2017 VA medical expert's opinion to be more probative and, therefore, persuasive as it is clearly based on an accurate review of the record and sound medical principles while the March 2015 VA examiner's report clearly had some factual errors in it and her reasoning was not clearly understandable and she does not provide citation to medical literature to support her opinion. Consequently, the Board finds the March 2015 VA examiner's medical opinion that the Veteran has CPPD is not sustainable and, therefore, her medical nexus opinion provided is inadequate insofar as it relies upon her diagnosis of the Veteran having CPPD. Nevertheless, in responding to the request for a medical nexus opinion, the VA examiner stated that the Veteran has been diagnosed with "impingement symptoms in the bilateral shoulders, not just the shoulder that he reports was injured while on active duty," and, therefore, "this leads away from posttraumatic [degenerative joint disease] as the cause of the left shoulder pain." As this opinion was not based upon the examiner's finding that the Veteran has CPPD, it does not have the same deficiency as her other opinion. Consequently, the Board finds this opinion to be adequate for rating purposes as it is clearly based upon the evidence of record and upon a clearly stated rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board acknowledges that the Veteran's VA treatment records appear to contain some favorable statements relating his current left shoulder disorder to his reported in-service injury. However, most of those statements are general in nature in that they discuss all of his joint pains, including bilateral ankle knee, hips and shoulders, and related them to injuries in service. See e.g., March 7, 2016 Rheumatology Consultation note. In contrast, the March 2015 and September 2017 medical opinions specifically relate to the left shoulder disorder. The Board finds the more specific medical opinions to be more probative and persuasive as to whether the Veteran's left shoulder disorder is related to any in-service injury. Moreover, the Veteran reported to his treating orthopedist that he sustained a "left shoulder dislocation" in service and that physician's opinion is based on such report. The Veteran has reported that he "popped" his shoulder out of place during a field exercise in service and that a medic in the field came over and just "popped it back in place" and then he just proceeded on. See September 2014 Board hearing testimony. However, there is no records to confirm that such action took place and, moreover, the Veteran's report does not sound consistent with an actual dislocation of the shoulder. The Board acknowledges that the Veteran is competent to testify as to any observable symptoms he may have suffered in service. McLendon v. Nicholson, 20 Vet. App. 79, 83-84 (2006); accord Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) ("While the lack of contemporaneous medical records may be a fact that the Board can consider and weight against a [claimant's] lay evidence," and while the Board "may . . . discount lay evidence when such discounting is appropriate," "the lack of such records does not, in and of itself, render lay evidence not credible"). However, the Veteran is not competent to render a medical diagnosis, for example, whether he may have sustained a dislocation (complete separation of a joint) versus a subluxation (incomplete or partial dislocation of a joint) of the left shoulder joint. Consequently, the Veteran is not competent to report to his VA orthopedist that he sustained a "dislocation," and, therefore, any opinion based upon it is not afforded any probative value. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (The Board may disregard a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or in contradiction with the facts of record.). Consequently, after weighing the evidence, the Board finds the most probative and persuasive evidence is the March 2015 and September 2017 medical opinions as those were clearly based upon a review of the Veteran's entire claims file to include his medical records and his statements as to the injury he incurred, as well as on sound medical standards. More importantly, the clinicians provided sound rationales for the opinions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Further, the preponderance of the evidence is against a finding that left shoulder arthritis manifested to a compensable degree within a year of service or that he has had continuity of symptoms since service. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for a left shoulder disorder is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for left hip osteoarthritis is granted. Entitlement to service connection for a left shoulder disorder is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs