Citation Nr: 1805652 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 04-03 446A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a right shoulder disorder, to include as secondary to service-connected cervical spine degenerative disc disease. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from April 1989 until May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2005, August 2006, and September 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2009 the Veteran presented testimony before a Veterans Law Judge (VLJ) who is no longer at the Board. In an August 2015 letter, VA informed the Veteran that the prior VLJ was no longer at the Board, and the Veteran elected to have another hearing before the undersigned VLJ in October 2015. A transcript of both hearings is of record. This matter was remanded by the Board in July 2009 and June 2014. In June 2016, the Board granted entitlement to service connection for headaches and denied entitlement to an earlier effective date for the grant of a TDIU. The Board also explained why the claims of entitlement to earlier effective dates for the grants of service connection for gastroesophageal disease, a lumbar spine disorder, and appendectomy scar were no longer in appellate status as the Veteran had exhausted her remedies. The Board then remanded the Veteran's claims of entitlement to service connection for a right shoulder disorder and for labyrinthitis. In a June 2017 decision, the RO granted entitlement to service connection for labyrinthitis with vertigo and assigned a 30 percent rating effective April 24, 2005. The remaining issue of entitlement to service connection for a right shoulder disorder was returned to the Board for further appellate review. In July 2017, the Veteran submitted correspondence indicating her disagreement with the effective date assigned for labyrinthitis in the June 2017 rating decision. Effective March 24, 2015, VA amended its regulations to provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the Agency of Original Jurisdiction (AOJ) as a notice of disagreement (NOD) only if it is submitted on a standard form, in cases where such a form is provided. See 38 C.F.R. §§ 19.23, 19.24, 20.201(a) (2017). For every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal, an NOD consists of a completed and timely submitted copy of that form. VA will not accept as an NOD an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. See 38 C.F.R. § 20.201 (a). In this case, the RO provided the Veteran with the standard NOD form in the notification letters for the June 2017 rating decision. Therefore, the submission requirement in 38 C.F.R. § 20.201 (a) applies in this case as to the earlier effective date issue and the Veteran's July 2017 correspondence is not a valid NOD. Thus, the June 2017 decision represents a full grant as to the benefit of service connection for labyrinthitis sought on appeal and the Board has limited its scope accordingly. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDING OF FACT Right shoulder arthritis with tendinitis began during active service and right upper extremity radiculopathy is etiologically related to service-connected chronic cervical strain with degenerative disc disease. CONCLUSION OF LAW The criteria for service connection for right shoulder arthritis with tendinitis and right upper extremity cervical radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the Board's favorable decision, any deficiencies in VA's duties to notify and assist are moot. Similarly, while in July 2017 the Veteran requested that the case be remanded to the AOJ for consideration of newly received evidence in the first instance, as the Board is able to grant the claim the Veteran's request is also moot. Service Connection The Veteran seeks entitlement to service connection for a right shoulder disorder she asserts is etiologically related repeated heavy lifting in service and also secondary to her service connected cervical spine degenerative disc disease. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2017). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's STRs note two incidents of right shoulder pain in August 1989 and May 1994 following lifting heavy objects. In August 1989, the Veteran was assessed as having muscle spasm versus thoracic radiculopathy. On her separation report of medical history, the Veteran denied swollen or painful joints. The Veteran's 1995separation exam was negative for abnormality of the right shoulder. In an April 2004 VA progress note, it was noted that the Veteran had pain that radiated to her right upper extremity. The assessment was possible cervical radiculopathy. It was reported that the Veteran had chronic right shoulder pain since 1994 when she used to carry heavy boxes in the military. A May 2004 VA radiology report noted moderate narrowing of the acromioclavicular joint space; minimal osteophyte spurring; mild degenerative change of the glenoid labra; and a mildly down sloping acromion. In a June 2004 statement, the Veteran reported experiencing more frequent shoulder pain with a "needle point" feeling. She also reported losing strength in her right arm. She reported that when she pushed on a certain part of her neck, pain would shoot down into her shoulder. August 2004 MRI studies prior to the Veteran's August 2004 motor vehicle accident were significant for tendinosis of the supraspinatus tendon and degenerative changes to the acromioclavicular joint. An August 2004 initial neurological evaluation from Florida Medical Associates (FMA) documented the Veteran was involved in a motor vehicle accident that month. The assessment was intermittent right arm radicular-like symptomatology due to the August 2004 motor vehicle accident. August 2004 VA x-ray studies documented the Veteran had increased right shoulder pain after a motor vehicle accident where she was rear-ended. The x-rays were significant for little degenerative changes. September 2004 VA x-rays of a shoulder, unspecified as to which side, showed an impression of some ligamentous laxity. An October 2004 private MRI report documented neck and shoulder pain since a motor vehicle accident in August 2004. The impression was stable minimal central bulges of intervertebral discs at C4-5 and C5-6. A December 2004 FMA neurological evaluation documented that the Veteran noticed increased shoulder pain following the August 2004 accident. Prior to the accident, the Veteran reported that her right shoulder pain occurred every other day. The assessment was at least an exacerbation of underlying right arm radicular like symptoms due to the August 2004 motor vehicle accident. January 2005 private EMG studies showed no evidence of radiculopathy of the right upper extremity. A January 2005 neurological report from FMA assessed the Veteran as having aggravation of her cervical spine symptoms with right arm radicular-like symptoms due to the August 2004 motor vehicle accident. The examiner noted review of the January 2005 EMG studies. A March 2005 VA examination report documented that the Veteran did not have significant upper extremity radicular complaints, and the assessment was cervical degenerative disease without significant radiculopathy. A July 2005 neurologic reevaluation from FMA documented that recent MRI studies showed no rotator cuff tear, prominent insertional tenderness of the supraspinatus tendon, mild acromioclavicular arthritis and slight lateral downsloping of the acromion, and mild sub acromial sub deltoid bursitis. Upon review of the August 2004 and July 2005 MRI films, the reviewing physician stated it was clear the Veteran had tendinosis of the supraspinatus tendon consistent with sub acromial tendinosis and causing some irritation of the tendons. In an August 2005 private medical opinion, it was reported that the Veteran had preexisting right shoulder problems prior to her 2004 motor vehicle accident. The physician diagnosed right shoulder pain with tendonitis; and cervical radiculopathy. An August 2005 second opinion orthopedic evaluation report documented that in 1993 and 1995 the Veteran had multiple injuries and right shoulder pain. The examiner stated it was clear the Veteran had some tendinosis of the supraspinatus tendon consistent with sub acromial tendinosis and causing irritation of the tendons. There was also visible bursitis. The impression was right shoulder pain with tendinitis of the right shoulder as a result of the accident of August 2004. The Veteran was noted to have preexisting problems related to the shoulder. The second impression was cervical radiculopathy. A September 2006 addendum to the August 2005 second orthopedic evaluation report clarified that it was clear the Veteran had pre-existing cervical problems. A June 2009 neurosurgical evaluation completed by Dr. FV reported the Veteran had a diagnosis of chronic neck pain with upper extremity radiculopathy. Dr. FV cited to the MRI studies of the cervical spine from Stand Up MRI of Orlando. An October 2009 VA treatment record documented the Veteran had persisting complaints of right shoulder pain and recalled injuring her right shoulder in service after lifting a 40 pound load. Since that time she reported intermittent right shoulder pain aggravated by lifting and writing. The assessment was right shoulder pain probably due to tendonitis and impingement. November 2009 VA MRI studies of the right shoulder showed a partial thickness tear of supraspinatus tendon communicating with the bursal surface, superimposed on changes of tendinopathy. There was also fluid in the sub acromial and sub deltoid bursa which may relate to a tear of the tendon. There were also mild arthritic changes in the AC joint. November 2010 VA x-rays of the right shoulder showed minimal degenerative arthritis of the right shoulder and acromioclavicular joint. There was increased distance between the humeral head and acromion that could be suggestive of thickened the rotator cuff tendon or joint effusion. At a May 2011 VA shoulder examination, the Veteran reported pain beginning at the base of her neck and radiating to her shoulder. The Veteran gave a history of right shoulder pain that had its onset in 1993 when she sustained an injury to her cervical spine and left wrist when she was hit by a piece of furniture. The Veteran had a current diagnosis of multilevel herniated cervical spine discs with intermittent right upper extremity radiculopathy. Upon review of the Veteran's medical history, the examiner noted minimal degenerative arthritis of the right shoulder and acromioclavicular joint but diagnosed "normal right shoulder examination." The examiner stated that the Veteran's shoulder pain was due to her cervical disc disease and not shoulder pathology. The examiner then stated that the Veteran's early arthritic changes were a normal, expected aging outcome and asymptomatic. April 2012 VA x-rays of the right shoulder were significant for subtle early degenerative changes of the right shoulder without progression from the prior 2010 study. At an April 2012 VA primary care appointment, the Veteran complained of worsening right shoulder pain. Physical examination showed tenderness over the upper right shoulder and her range of motion was very limited. The physician reported that x-rays had shown subtle early degenerative changes, and the assessment was possible rotator cuff tear of the right shoulder. In an April 2014 message to her healthcare provider, the Veteran wrote that she was experiencing intermittent muscle weakness and right arm heaviness from the top shoulder joint to the middle joint of the right arm. She presented to Fish Hospital with similar complaints that month and the final diagnosis was heaviness of the right arm with MRI evidence of moderate discogenic disease at C5-6 and some foraminal stenosis. In September 2014 the Veteran was hospitalized with complaints of bilateral shoulder pain. She had reported pain in both shoulders that radiated down to the arms and hands. A November 2014 cervical spine MRI ordered by Dr. RB documented that at C3-C4 and C4-C5 there was an unchanged posterior disc herniation and mild spinal stenosis. At C5-C6 there was a posterior disc herniation with disc bulge, mild spinal stenosis, and bilateral foraminal stenosis. At C6-T1 there was improvement of the disc herniation which resulted in anterior impression on the thecal sac. The impression was essentially unchanged study since June 2012 with the exception of improvement of the disc herniation at C7-T1. The Veteran was afforded another VA shoulder examination in March 2015. Upon review of the Veteran's claims folder and in person examination, the examiner noted a current diagnosis of degenerative arthritis of the right shoulder. The Veteran reported injuring her right shoulder in 1989 while lifting heavy equipment. The Veteran reported ongoing symptoms of occasional tenderness, and a feeling like her arm was heavy. She stated that upon separation from service she filed a claim for her right shoulder when she separated in 1995, but was not afforded a VA examination. She reported that since service, her shoulder was tender at times and sometimes her arm felt too heavy to lift. She reported the symptoms were aggravated by repetitive and heavy lifting. The examiner opined that the Veteran's current minor arthritis was less than likely related to her military service. In support of that opinion, the examiner noted that the Veteran had one documented complaint of shoulder pain in 1989, with no subsequent complaints. In addition, there was no objective evidence of a shoulder abnormality until almost 10 years following separation from service. The only abnormality noted on current exam was minor tenderness to palpation. June 2015 VA x-rays of the right shoulder showed calcific tendinitis of the right shoulder. A March 2016 VA treatment record documented that the Veteran had chronic neck pain with radicular symptoms in both arms that had been worse in the right arm recently. The assessment was worse cervical radiculopathy. A May 2016 VA treatment record documents that the Veteran had shooting pain down her right arm that started after she lifting some furniture. She reported having similar symptom episode since service. The assessment was cervical radiculopathy with flare. Examination showed the right shoulder tender to palpation over lateral deltoid and triceps, with worse pain with flexion. In June 2016, the Veteran's treating physician, Dr. JC, wrote that the Veteran had cervical spine radiculopathy and chronic shoulder pain. VA treatment records list cervical radiculopathy among the Veteran's problems list, and June 2016 VA treatment records note radicular symptoms to the bilateral arms. July 2016 VA MRI studies showed no acute compression, marrow replacement, or cervical cord lesion. There was disc herniation at C5-6 effacing the thecal sac. There was also foraminal narrowing on the right worse than the left that abutted the C6 nerve roots. There was disc herniation at C3-4, C4-5, C6-7 and C7-T1, without canal stenosis or neural impingement. An addendum noted there was also mild foraminal narrowing, right worse than left, which appeared unchanged. Central narrowing at narrowing at multiple segments is stable. The remainder of the neural foramina appeared patent. September 2016 MRI studies of the right shoulder were significant for persistent calcific tendinitis. The Veteran underwent a VA cervical spine and shoulder examination in March 2017. The examiner indicated that the Veteran had no signs or symptoms due to radiculopathy, and that sensory examination was normal. The examiner did note diagnoses of cervical degenerative disc disease, right shoulder arthritis, and right shoulder tendinitis. A rotator cuff condition was also suspected. The examiner reported that the onset of the symptoms was 1994 when "furniture dropped on top of [the Veteran's] shoulder and he [sic] also had to repetitively lift his shoulder. Since the onset his condition has gotten worse. He has pain with carrying groceries and constant pain worse with activity." The examiner opined that the Veteran's right shoulder condition was not related to her period of active service. In support of that opinion, the examiner again reiterated that the Veteran had one complaint of right shoulder pain while in service and right shoulder problems were not noted at discharge. The records were then silent until August 2004 when "her shoulder complaints started again." The examiner noted that the Veteran was again seen in August 2005 for right shoulder problems following an August 2005 motor vehicle accident. The examiner explained there was not enough documentation to support that her current shoulder complaints occurred while in service when her exit examination was negative. The examiner then stated there was no current diagnosis of radiculopathy. In a June 2017 letter, the Veteran's treating physician wrote a letter documenting the Veteran had a current diagnosis of cervical radiculopathy with multiple disc herniations. In July 2017, the Veteran wrote that following her initial in-service injury, there were two more complaints of right shoulder pain in August 1989. Namely, she states she was injured on the 29th, and was seen the following two days for similar symptoms. She then reported that she had similar complaints in May 1995 (neck/upper back pain) due to heavy lifting. She reported that prior to her 2004 motor vehicle accident; she had diagnoses of cervical disc disease and possible cervical radiculopathy. The Board finds the criteria for service connection for right shoulder arthritis with tendinitis and right upper extremity radiculopathy are met. The Veteran has documented in-service shoulder complaints, a current diagnosis of right shoulder arthritis, and has consistently testified that her right shoulder symptoms began in service and continued thereafter. The Veteran has consistently reported that the onset of her right shoulder symptoms was in service and her STRs show two incidents of right shoulder symptoms as she has described. While her separation physical is silent for right shoulder problems, she was treated for right shoulder complaints in May 1994 within a year of separation. There is no evidence of an intervening right shoulder injury between separation and April 2004, prior to the accident, when VA treatment notes document chronic right shoulder pain since 1994. While the 2011, 2015, and 2017 VA examiners concluded the Veteran's arthritis was not related to service, the Board finds those opinions inadequate. The 2011 examiner reported the Veteran's mild arthritis was asymptomatic; however there was not an accompanying explanation as to why the Veteran's report of shoulder pain would not be considered a symptom of arthritis. The 2015 VA examiner did not address the Veteran's second report of in-service right shoulder symptoms and failed to address the Veteran's reports of continuity of symptoms. The 2017 examiner failed to address the VA treatment records indicating chronic right shoulder symptoms prior to the Veteran's August 2004 motor vehicle accident. In sum, as arthritis is a chronic disease the Veteran's reports of onset and continuity of symptoms since her documented in-service shoulder injuries, along with a current diagnosis of arthritis that existed prior to her 2004 car accident is sufficient to establish a nexus in this case. This is because the STRs combined with the Veteran's testimony show characteristic manifestations sufficient to identify the disease entity and a showing of continuity of symptoms after discharge. 38 C.F.R. §§ 3.303(b), 3.309. The VA opinions of record are inadequate and not afforded any weight. At the very least, the evidence for and against the claim is in relative equipoise on the issue of whether right shoulder degenerative joint disease with tendinitis is etiologically related to the Veteran's period of active service so reasonable doubt must be resolved in the Veteran's favor. The Board also finds that the preponderance of the evidence demonstrates the Veteran has a current diagnosis of right upper extremity radiculopathy and the Veteran is service connected for cervical degenerative disc disease. The Veteran was assessed as having possible cervical radiculopathy and arthritis per imaging studies also prior to the 2004 accident, and there is no evidence of an intervening injury between her in-service. See April 2004 VA progress note; see August 2004 VA MRI studies. Following the 2004 accident, the Veteran was assessed as having at least an exacerbation of underlying right shoulder radicular like symptoms. The Veteran was assessed as having cervical radiculopathy by the August 2005 private examiners and by Dr. FV in June 2009 following neurosurgical evaluation. The May 2011 VA examiner reported the Veteran's shoulder pain was due to cervical disease rather than shoulder pathology, and diagnosed intermittent right upper extremity radiculopathy. The intermittent nature of the Veteran's radiculopathy could account for the discrepancies in the record regarding the Veteran's diagnosis. The Veteran's treating physician has repeatedly assessed the Veteran as having cervical radiculopathy. The earliest EMG studies in January 2005 did not show evidence of radiculopathy, nevertheless the January 2005 neurological examiner who reviewed those results diagnosed the Veteran with radicular-like symptoms. The March 2005 VA examination documented the absence of significant radiculopathy, yet this does not demonstrate the total absence of radiculopathy. The 2017 examiner failed to address the other evidence of record indication prior diagnoses of cervical radiculopathy, or otherwise reconcile their opinion that the Veteran did not have a current diagnosis of cervical radiculopathy. In sum, the Board finds that the preponderance of the evidence demonstrates the Veteran has a diagnosis of right upper extremity intermittent cervical radiculopathy that is etiologically related to her service-connected cervical spine disorder and service connection on a secondary basis is warranted. ORDER Service connection for right shoulder arthritis with tendinitis and right upper extremity cervical radiculopathy is granted. ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs