Citation Nr: 1805611 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-07 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for right shoulder post-operative dislocation. 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty service from December 1967 to December 1978. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in November 2015. This matter was originally on appeal from rating decisions in July 2012 of the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia. In May 2015, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The issue of entitlement to an evaluation in excess of 30 percent for right shoulder post-operative dislocation is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A chronic cervical spine disability was not manifested during service and is not shown to be related to active service or to service-connected disability; cervical spine arthritis was not manifested within a year of separation from service. CONCLUSION OF LAW A chronic cervical spine disability was not incurred in or aggravated by service or caused or aggravated by service-connected disability; cervical spine arthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters Pursuant to the Board's November 2015 Remand, the Appeals Management Center (AMC) requested the Veteran's Social Security Administration records, obtained all outstanding VA treatment records since June 2012, obtained an additional opinion regarding the etiology of the Veteran's cervical spine disorder, readjudicated the claim, issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's November 2015 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, during the May 2015 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Veteran seeks service connection for a cervical spine disorder. The Veteran does not contend, and the evidence does not demonstrate, that his cervical spine pain began in service or that his cervical spine arthritis manifested within a year following his discharge from service. The Veteran's service treatment records indicate that in December 1975, he complained of a slight pain along the left side of his neck; diagnosis was pharyngitis with Eustachian tube involvement. In July 1977, the Veteran complained of dizziness upon certain movements of his head and "pressure" in the back of his neck during dizziness episodes. Despite complaint of slight neck pain in 1975 and "pressure" in the back of his neck in 1977, the Board cannot conclude a "chronic" cervical spine condition was incurred during service. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Arthritis can be service-connected on such a basis. The record, however, is absent any cervical spine arthritis within a year of the Veteran's discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. 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, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. The Veteran has not reported continuity of cervical spine pain since service. At the VA examination in April 2012, the Veteran reported that he began having neck pain about 10 years prior when he would lift objects above his chest. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran clearly has a current chronic cervical spine disability. The Veteran underwent VA examinations in March 2004 and April 2012. X-rays taken in March 2004 showed focal degenerative and hypertrophic changes at C5-6 and C6-7. X-rays taken in April 2012 showed degenerative changes most predominant at C5-6 through C6-7. The remaining question, therefore, is whether there is competent evidence of a relationship between the current disability and active duty service or between the current disability and a service-connected disability. No medical professional, however, has ever related the Veteran's cervical spine condition to either his active duty service or a service-connected disability. The April 2012 VA examiner opined that the Veteran's cervical spine degenerative joint disease was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the Veteran had advanced degenerative joint disease of the cervical spine with bilateral neural foraminal narrowing as seen on x-rays dated in April 2013. The examiner noted that there was no relationship between recurrent dislocations of the right shoulder and the development of advanced degenerative joint disease of the cervical spine. The examiner opined that the Veteran's pain in the neck and bilateral shoulders was more likely than not the result of bilateral cervical radiculopathy from the neural foraminal narrowing seen on x-ray adding to the pain from his degenerative arthritis of the acromioclavicular (AC) joints in both shoulders. The Veteran underwent VA examination in November 2013. After review of the record and examination of the Veteran's shoulders, the physician noted that a right shoulder disorder could not physiologically or anatomically cause a neck condition. At his Travel Board hearing in December 2015, the Veteran reported that his neck pain started sometime in the 1980s and that his current pain was from his neck down to the middle of his back with constant popping in his neck with movement. The Veteran underwent VA examination on December 4, 2015. After physical examination of the Veteran and review of the record, the physician opined that the Veteran's cervical spine degenerative condition was not related to or caused by service-connected right shoulder. The physician explained that the degenerative joint disease was related to the aging process and his occupational history. The physician noted that the Veteran worked as an installer and serviceman in the heating and cooling business since leaving service in 1978 which entailed lifting and working in awkward positions and that it was a physically demanding job. In September 2016, VA obtained an additional opinion regarding the Veteran's cervical spine disorder. After review of the file, the examiner, a VA physician, opined, It is my medical opinion, in agreeance with previous examiners, that the Veteran's claimed cervical spine disability, currently diagnosed, based upon imaging, as degenerative disk changes and superimposed disk herniation at the C5-6 level, with ossification of the posterior longitudinal ligament, contributing to canal narrowing to 7.4 mm at this level, with additional degenerative changes causing mild cord deformity at the C4-5 and C6-7 levels, is less likely than not (less than 50 percent probability) proximately due to or the result of or aggravated by the Veteran's service connected shoulder conditions, currently diagnosed as bilateral acromioclavicular joint osteoarthritis and bilateral degenerative arthritis of the shoulder. The physician summarized, [T]he Veteran had no evidence of a cervical spine disability pre-existing his military service. During the Veteran's military serv[ic]e, after dislocating his right shoulder for the first time, the Veteran experience recurrent dislocation of his right shoulder and underwent surgical treatment of his recurrent dislocation of the right shoulder with operative finding of a Bankart lesion treated with a modified Bristow Capsulorrhaphy at the end of May 1978. Prior to this surgery, the Veteran had complained of dizziness upon certain movements of his head and "pressure" in the back of his neck during dizziness episodes, and slight spasm was noted in his left sternoclydomastoid muscles, in addition the Veteran was also complaining of muscles "knotting" in his right shoulder. After su[r]gery STR provide no in[]dication of the Veteran experiencing on-going dizziness or muscle spasms, during his post-operative recovery. Review of the Veteran's STRs does not find evidence of the Veteran being evaluated for an injury to his neck or complaining of cerv[]ical spine symptoms during his active military service. Review of the VBMS eRecord and VA CPRS medical records for the Veteran include his provided history: "About 10 years ago, the Veteran began having neck pain when he would lift objects above chest high. The pain is worse with work and exercise. X-rays in 2004 showed degenerative joint disease with narrowing of the neural foramina on the left", from the Neck Conditions C&P Examination with Medical Opinion dated 4/16/2012 completed by [an examiner] who diagnosed the Veteran with degenerative arthritis of the cervical spine. The examiner provided a negative opinion for the Veteran's c-spine being proximately due to or the result of the Veteran's service connected right shoulder condition based upon rationale: "The Veteran has advanced degenerative joint disease of the cervical spine with bilateral neural foraminal narrowing, as seen on x-rays dated 4/16/2012. There is no relationship between recurrent dislocations of the right shoulder and the development of advanced degenerative joint disease of the cervical spine." The Shoulder and Arm Conditions C&P Examination with Medical Opinion dated 12/4/2015 completed by [an examiner] currently diagnosed the Veteran with bilateral acromioclavicular joint osteoarthritis and bilateral degenerative arthritis of the shoulder, and noted results of [] MRI of C-spine dated 10/6/2015 that showed cord deformity by degenerative disk changes and superimposed disk herniation at the C5-6 level. Ossification of the posterior longitudinal ligament also contributes to canal narrowing at this level. This reduces the cervical spinal canal to 7.4 mm at the C5-6 level. Degenerative changes also cause mild cord deformity at the C4-5 and C6-7 levels as described. The examiner provided a negative opinion for the Veteran's claimed c-spine disability secondary to his SC right shoulder based upon rationale that: "This DJD is related to aging process and his occupational history. Veteran worked as installer & service man in Heating & cooling business, since leaving service in 1978. This entails lifting & working in awkward positions. This is a physically demanding job." A limited review of the scientifically based medical literature does NOT provide an association, NOT causal and NOT permanent worsening beyond normal progression for the Veteran's SC shoulder disab[i]lities, currently diagnosed as bi[la]teral acromioclavicular joint osteoarthritis and bilateral degenerative arthritis of the shoulder, with a history of surgical treatment for recurrent right shoulder dislocation with Bankart lesion treated with a modified Bristow Capsulorrhaphy and the development of cervical spine DDD and DJD. The literature does provide evidence of occupational risk factors and the development of neck and shou[ld]er musculoskeletal disorders. Thus, the record is absent competent evidence of a chronic cervical spine disorder during service, competent evidence of cervical arthritis within a year following service, evidence of continuity of symptomatology, and competent evidence of a nexus between the Veteran's current chronic cervical spine disorder and either his active duty service or service-connected disability. The Board must also consider the Veteran's own opinion that his cervical spine disorder is related to service-connected shoulder disability. In this case, the Board does not find him competent to provide an opinion regarding the etiology of his current cervical spine arthritis as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. ORDER Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected disability, is denied. REMAND The Veteran seeks an evaluation higher than 30 percent for service-connected right shoulder disability. In October 2016, the Veteran underwent right total shoulder arthroplasty. At that time, he was awarded a temporary total rating following the right shoulder replacement. Thereafter, effective January 1, 2017, the Veteran was awarded a 30 percent rating pursuant to Diagnostic Code 5202, which provides for a 30 percent rating when there is marked deformity for the major arm, when there are recurrent dislocations of the arm at the scapulohumeral joint, or when there are frequent episodes and guarding of all arm movements for the major arm. A 50 percent rating is granted for fibrous union of the major arm; a 60 percent rating is granted for nonunion (false flail joint) of the major arm; and an 80 percent rating is granted for loss of head of (flail shoulder) for the major arm. Thus, in order to warrant a higher rating for the Veteran's service-connected right shoulder disability pursuant to Diagnostic Code 5202, the evidence must show fibrous union of the major arm; nonunion (false flail joint) of the major arm; or loss of head of (flail shoulder) for the major arm. Higher evaluations are also warranted pursuant to Diagnostic Code 5200 for intermediate or unfavorable ankylosis of scapulohumeral articulation and pursuant to Diagnostic Code 5201 for the major arm limited to 25 degrees from side. In this case, the Veteran last underwent VA examination to determine the severity of his service-connected right shoulder disability in December 2015, prior to his shoulder replacement. As such, the evidence of record is clearly stale. The Court has impressed on VA on many occasions the necessity of obtaining a recent VA examination. See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. Thus, the Veteran should be scheduled to undergo VA examination by an appropriate physician to determine the current severity of his service-connected right shoulder disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA orthopedic examination, preferably by an examiner with expertise in diagnosing and treating shoulder disabilities. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. In accordance with the latest worksheets for rating shoulder disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his disability. A complete rationale for any opinions expressed must be provided. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures should be implemented. 4. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs