Citation Nr: 18139872 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 13-36 399 DATE: October 1, 2018 ORDER Service connection for a right shoulder disability, claimed as secondary to service connected disabilities of the lower extremity, is granted. REMANDED The appeal for entitlement to service connection for a cervical spine disability, claimed as secondary to service connected disabilities of the lower extremity, is remanded. FINDINGS OF FACT 1. The Veteran’s service connected disabilities of the lower extremities include disabilities of the right ankle, the left ankle, the right knee, the left knee, radiculopathy to the right lower extremity, and radiculopathy to the left lower extremity. 2. The medical evidence supports the Veteran’s testimony that a September 2010 fall was caused by her service connected disabilities of the lower extremities. 3. The medical evidence demonstrates that the Veteran’s right shoulder impingement and degenerative changes were first discovered during the treatment that followed the September 2010 fall, and there is no evidence of these disabilities prior to the fall. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability, claimed as secondary to service connected disabilities of the lower extremities, have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1985 to November 1989 in the Air Force. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in July 2018. A transcript is in the record. Entitlement to service connection for a right shoulder disability. The Veteran contends that she has developed a disability of the right shoulder secondary to her service-connected disabilities of the lower extremities. She contends and testifies that her leg gave out as she was taking a step up. This caused her to fall and land on her right shoulder, which resulted in a chronic disability. 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The 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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In this case, the evidence clearly establishes that the Veteran has a current right shoulder disability. A March 2011 VA physical therapy consultation contains a provisional diagnosis of an injury to the intrinsic muscles of the shoulder girdle. An X-ray obtained at that time showed inferior subluxation of the humeral head relative to the acromion which could be seen with ligamentous laxity, and degenerative change of the glenohumeral joint. A March 2011 magnetic resonance imaging (MRI) study revealed hypertrophic degenerative change of the acromioclavicular joint, supraspinatus tendinopathy, and subscapularis tendinopathy. A June 2011 examination resulted in an impression of right shoulder impingement. The March 2012 VA examination also reached a diagnosis of right shoulder impingement. The examiner noted that the Veteran certainly has pathology in the right shoulder. The first requirement for service connection has been met. The claims file also shows that the Veteran is service connected for several disabilities. In relevant part, she is service connected for disabilities of the right ankle, the left ankle, the right knee, the left knee, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity. The effective dates of service connection for all of these disabilities is before the date of the alleged fall. The Board finds that the second requirement for service connection has been met. The final requirement is medical evidence establishing a nexus between the service connected disabilities and the current right shoulder disability. To be specific, the questions to be answered are did the Veteran’s service connected disabilities cause her to fall and, if so, did this fall result in the right shoulder disability? The Board will find that both questions can be answered in the affirmative. At her July 2018 hearing, the Veteran testified that she fell when her leg gave out while trying to climb up a step. A review of the claims folder shows that the Veteran was initially seen for right shoulder and low back pain at a VA facility in September 2010, at which time stated she had fallen and injured her right side two weeks earlier. On fall evaluation, she did not state that her leg had given out, but said that she had tripped. The Board observes that falls are consistent with other medical evidence. An August 2008 VA treatment record includes a fall assessment which noted five falls during the previous three months. She also reported chronic pain of the right knee, back, and arm. A June 2009 VA treatment record includes a fall assessment that noted two falls in the last three months. A VA July 2010 fall assessment made less than two months before the alleged fall in question states that the Veteran had fallen two times during the past 12 months. At this juncture, the Board notes that none of these records specifically state that the Veteran’s falls were due to impairment of the lower extremity due to the Veteran’s service-connected disabilities. However, the Veteran is competent to describe the sensations in her leg at the time of her September 2010 injury. Furthermore, the Board finds her to be credible. Her credibility is bolstered by the evidence of previous falls, as well as a March 2011 private medical record which shows the Veteran was treated after her service connected left knee gave out and a May 2011 SSA form in which the Veteran complained of sharp shooting pains in her legs and noted she sometimes used a walking cane to keep from falling. There is no evidence that clearly attributes the Veteran’s fall to any other reasons, and the Board finds that it is at least as likely as not that her September 2010 fall was proximately due to her service-connected disabilities of the lower leg. That being the case, the Board further notes that while the medical records show complaints of right arm pain associated with a cervical spine disability prior to September 2010, the initial evidence of pathology within the right shoulder joint was discovered in conjunction with treatment during the first several months following the September 2010 injury, as described above. The Board observes that the March 2012 VA examiner expressed a negative opinion regarding a relationship between the service connected disabilities of the lower extremity and the right shoulder disability. However, this examiner failed to discuss the potential impact of the Veteran’s alleged fall and right shoulder injury, which makes the opinion inadequate. In contrast, VA treatment records dated December 2010 and February 2011 explicitly state that the onset of the Veteran’s right shoulder disability began after a fall. The Board finds that the evidence shows that the right shoulder disability is the result of a fall caused by the Veteran’s service connected disabilities of the lower extremities, and service connection is warranted. REASONS FOR REMAND Entitlement to service connection for a cervical spine disability, claimed as secondary to service connected disabilities of the lower extremity. The Veteran contends that she sustained an injury to her cervical spine in the same fall in which she injured her right shoulder. The medical evidence clearly shows that the Veteran has had some form of cervical spine pathology since at least August 2001. A VA treatment note from that month states that a recent CT scan had found a small anterior osteophyte at C6-C7 but no foraminal stenosis. This predates her fall by approximately nine years. However, although the initial VA treatment records following the September 2010 fall do not show complaints regarding the cervical spine, they do show she began to experience cervical spine symptoms within a few months, and eventually had cervical fusion surgery in September 2011. The Veteran was afforded a VA examination of her cervical spine disability in March 2012. The examiner noted the Veteran’s allegations of an injury sustained in a fall, but appears to have concluded that the fall did not occur. He notes that the Veteran has a history of surgery for cervical spine fusion. However, at one point in the report the examiner states the surgery was in 2001, but at another point says it was in 2011. The examiner opined the Veteran’s cervical spine disability was in no way related to her service-connected lower extremity disabilities, but does not discuss the potential impact of a fall in this opinion. Given that the Board now finds it is likely that the Veteran’s alleged fall occurred, and given what appears to be an inaccurate history in the examination report, the Board finds that an addendum to this opinion should be obtained. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from December 2014 to the present pertaining to her cervical spine disability. 2. Return the March 2012 report of the VA examination of the cervical spine to the examiner who should review the claims file to become familiar with the Veteran’s pertinent history. **The examiner is to assume that the Veteran sustained a fall in September 2010.** Then, he is to provide the following opinions: a) Is it as likely as not that the Veteran sustained a previously undiagnosed disability of the cervical spine due to the September 2010 fall? If so, what is the diagnosis of this disability? b) If the answer to (a) is negative, is it as likely as not that a pre-existing disability was aggravated (increased in disability beyond natural progression) due to the September 2010 fall? If so, what is the diagnosis of this disability? Furthermore, can a baseline severity prior to the September 2010 fall be identified? If so, please describe this baseline. If the March 2012 examiner is not available, the examination report and claims file should be forwarded to an equally qualified medical examiner to obtain the requested opinions. A new examination is not required, but may be scheduled if the examiner determines it is necessary to provide the opinions. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). (Continued on the next page)   If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel