Citation Nr: 18152711 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 17-10 344 DATE: November 27, 2018 ORDER The application to reopen the previously denied claim for service connection for a neck injury is granted. Entitlement to service connection for bilateral shoulder osteoarthritis is granted. Entitlement to service connection for right clavicle disability is granted. Entitlement to service connection for degenerative disc disease of the cervical spine is granted. Entitlement to service connection for right wrist carpal tunnel syndrome (CTS) is granted. Entitlement to service connection for a bilateral leg disability is granted. FINDINGS OF FACT 1. In a January 2010 decision, the Regional Office (RO), among other things, denied the Veteran’s claim for service connection for a neck injury; the Veteran did not timely initiate an appeal of that decision or submit new and material evidence within one year of notification. 2. Evidence added to the record since the January 2010 decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran’s bilateral shoulder osteoarthritis is related to an in-service injury. 4. The evidence is at least evenly balanced as to whether the Veteran’s right clavicle disability is related to an in-service injury. 5. The evidence is at least evenly balanced as to whether the Veteran’s degenerative disc disease of the cervical spine is related to an in-service injury. 6. The evidence is at least evenly balanced as to whether the Veteran’s right wrist carpal tunnel syndrome (CTS) had its onset in service. 7. The evidence is at least evenly balanced as to whether the Veteran’s bilateral leg disability had its onset in service. CONCLUSIONS OF LAW 1. The January 2010 RO decision that denied reopening of the claim for service connection for a neck injury is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for a neck injury have been met. 38 U.S.C. § 5108; 38 C.F.R. §3.156 (a). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral shoulder osteoarthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a right clavicle disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for degenerative disc disease of the cervical spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right wrist CTS have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 7. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a bilateral leg disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to October 1995. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina which, among other things, denied service connection for bilateral shoulder pain, right wrist CTS, bilateral leg pain secondary to back, right collarbone disability, and denied reopening of the claim for service connection for a neck injury. In September 2015, the Veteran filed his notice of disagreement, and in February 2017 was issued a statement of the case and perfected his appeal to the Board. New and material Prior to the filing of the current claims, the Agency of Original Jurisdiction (AOJ) previously denied a claim of service connection for a neck injury in January 2010 and the Veteran did not initiate an appeal or submit new and material evidence within a year. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. §20.1100. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. 38 C.F.R. § 3.156 (b). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence available at the time of the January 2010 denial included service treatment records and post-service treatment records noting chronic neck pain since the Veteran’s 1992 injury. The AOJ denied the Veteran’s claim finding his neck injury was not caused by an in-service injury, disease or event. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The decision thus became final. Evidence received since the January 2010 prior denial includes service treatment records, post-service treatment records, and a January 2017 VA examination. This new evidence is not redundant of the evidence of record, and raises a reasonable possibility of substantiating the claim as it provides previously unsubmitted evidence relating to a current neck disability as well as evidence regarding its etiology. Therefore, the evidence received since the January 2010 prior denial is new and material, thus the application to reopen the claim for service connection for a neck disability is granted. Service Connection The Veteran contends that his current neck disability is related to an injury that occurred while on active duty. He also stated in his notice of disagreement that his claimed disabilities are related to his service connected back disability. However, the issues on appeal are not limited to those relating to the specific contentions of the Veteran; rather, the Board must address all theories raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner). A January 2017 buddy statement noted that during active duty service, the Veteran always projected a positive attitude without complaint, but was in constant pain and would need medical attention in an environment where his men would not see him in a position of weakness. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including osteoarthritis and organic diseases of the nervous system including CTS, may be presumed to have been incurred in, or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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). “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). 1. Bilateral shoulder and right collarbone disabilities November 1976 service treatment records note the Veteran was treated for right shoulder pain after playing football. The records noted swelling over the Veteran’s right clavicle. The Veteran’s June 1995 medical examination report and medical history report upon retirement are normal with no indication of any shoulder disabilities or right collarbone disability. May 2003 post-service treatment records show the Veteran was treated for chronic pain in both shoulders which he reported having for 8 months. The Veteran also reported numbness in his left shoulder. December 2014 post-service treatment records note treatment for chronic right and left shoulder pain. The records indicate the Veteran suffered from osteoarthritis of the acromioclavicular and glenohumeral joints. September 2016 post-service treatment records note the Veteran was treated for right shoulder pain and weakness which has been ongoing for years and was worsening. December 2016 post-service treatment records note the Veteran was treated for osteoarthritis, bursitis and rotator cuff tear of the right shoulder. January 2017 post-service treatment records indicate the Veteran complained of chronic right shoulder pain he attributed to jumping out of airplanes in service. The Veteran stated that the pain was persistent, chronic and worsening, and limited his mobility. A January 2017 disability benefits questionnaire (DBQ) noted diagnoses for tendonitis of the right shoulder and osteoarthritis of both shoulders. The examination report noted the Veteran’s history of right clavicle injury and the Veteran’s report of worsening pain since the 1980s with increased amount of physical activity. The Veteran reported pain, weakness, and decreased range of motion. The examiner opined that the Veteran’s right rotator cuff tendonitis and bilateral glenohumeral joint and acromioclavicular joint osteoarthritis was less likely than not incurred by the claimed in service injury, event, or illness. The examiner noted that aside from a right clavicle injury, there has been no other significant diagnosis related to shoulder pain. A March 2018 medical opinion by a nurse practitioner (NP) in the Family Medicine Clinic at a Naval Medical Center indicated that the Veteran’s bilateral shoulder pain and right clavicle disability was due to his military service as he was treated for the pain in service and is currently being treated for his ongoing issues. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral shoulder disability is the result of an injury incurred in service. The Veteran has provided competent evidence of chronic right shoulder pain which he stated was caused by service and has been ongoing since service. While the January 2017 examiner opined that the Veteran’s shoulder disabilities were less likely than not incurred by the claimed injury, event or illness, the examiner based his opinion on the lack of a significant diagnosis related to shoulder pain. The examiner failed to fully consider the Veteran’s competent statements of pain since service, thus his opinion is afforded little probative weight. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). The NP who provided the March 2018 opinion indicated that she had reviewed the Veteran’s service treatment records and that based on his treatment in service and ongoing treatment for these issues, his shoulder and clavicle disabilities are related to his military service. As the examiner gave a rationale for opinion, although brief, the opinion is entitled to at least some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The evidence is thus at least evenly balanced as to whether the Veteran’s current bilateral shoulder and right clavicle disabilities were caused by his in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Veteran’s claims of entitlement to service connection for a bilateral shoulder osteoarthritis, and entitlement to service connection for a right clavicle disability, are warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Neck disability June 1994 service treatment records note the Veteran was treated for severe neck pain and decreased range of motion in his neck after wrestling and demonstrating various maneuvers of firing positions. The Veteran’s June 1995 medical examination report and medical history report upon retirement are normal with no indication of any neck disability. Post-service treatment records from September 2009 note the Veteran was treated for chronic cervical pain since a 1992 injury. The treatment records indicate the Veteran suffered degenerative joint disease of the cervical spine with no acute bone abnormality. December 2014 post-service treatment records note multi-level degenerative joint disease and degenerative disc disease of the cervical spine. A January 2017 DBQ noted the Veteran’s diagnosis for degenerative arthritis of the spine, diagnosed in December 2014. The Veteran stated that his neck injury began in 1980 after a motor vehicle accident. The Veteran stated that he continues to have neck pain and stiffness since the initial injury, and that is has worsened and become more frequent. The examination report noted a December 2014 x-ray which showed multilevel degenerative disc disease. The examiner opined that the Veteran’s degenerative arthritis of the cervical spine was less likely than not incurred by the claimed in-service event as there was no evidence of neck injuries suffered during service. The Board finds this opinion inadequate as the examiner based his opinion on a lack of evidence of injuries in the service treatment records and failed to address the Veteran’s contentions of a neck injury that stemmed from a motor vehicle accident in service, or the June 1994 service treatment records noting treatment for neck pain. Dalton, 21 Vet. App. 23 (2007). The March 2018 NP indicated that the Veteran’s chronic neck pain was due to his military service as he was treated for the pain in service and is currently being treated for his ongoing issues. As noted, given her file review and brief rationale, this opinion is entitled to some probative weight. Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. The evidence is thus at least evenly balanced as to whether the Veteran’s current cervical spine degenerative disc disease is the result of an injury incurred in service. The Veteran has provided competent evidence of chronic cervical spine pain which he stated was caused by service and has been ongoing since service. While the January 2017 examiner opined that the Veteran’s cervical spine disability was less likely than not incurred by the claimed in-service event, the opinion is inadequate as the examiner failed to fully consider the Veteran’s competent statements of a neck injury in service, and based his opinion on a lack of evidence of a neck injury in the service treatment records. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for degenerative disc disease of the cervical spine is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Right wrist CTS Service treatment records do not note treatment for, or complaints of right wrist CTS, and the Veteran’s June 1995 medical examination report and medical history report upon retirement are normal with no indication of any wrist disabilities. A January 2017 DBQ noted a diagnosis for bilateral CTS from 1997 which the Veteran stated he started noticing toward the end of his active duty career in 1988. The Veteran stated 4th and 5th digit numbness bilaterally during service increased in frequency while going on long hikes with excessive weight and that he continued to have the same symptoms after service. The Veteran stated he was doing training that involved excessive use of this index fingers that have caused pain over the years as well, but since retirement, the symptoms have not progressed. He still reported numbness in the 4th and 5th digits. The examiner opined that the Veteran’s CTS was less likely than not incurred in the claimed in-service injury, event, or illness as there were no documented encounters regarding wrist/hand pain/numbness while he was in service. The Board finds that the evidence is at least evenly balanced as to whether the Veteran’s current right wrist CTS had its onset during service. While the January 2017 examiner opined that the Veteran’s CTS was less likely than not incurred in-service, the examiner based his opinion on a lack of documentation of treatment or complaints of wrist or hand pain and numbness in the service treatment records. However, the Veteran has provided sufficient evidence explaining the lack of documentation in his service treatment records as his submitted buddy statement indicated the Veteran did not seek medical attention for his pain as he did not want to be perceived as “weak”. The examiner failed to consider this contention, and did not address the Veteran’s statements regarding pain during training exercises in service. Therefore, the 2017 examination report is afforded little probative weight. See Dalton, 21 Vet. App. 23 (2007). The Veteran has provided competent evidence of 4th and 5th digit numbness during service which he stated has continued since service, and a diagnosis for CTS is noted from 1997, approximately 2 years after discharge. Given the Veteran’s competent and credible complaints of numbness of the hands in and since service, including to health care providers, it is at least as likely as not that this chronic disease had its onset in service. Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)). The evidence is thus at least evenly balanced as to whether the Veteran’s right-hand CTS had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for right-hand CTS is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. Bilateral leg pain April 1979 service treatment records note complaints of leg pain and stress in the right lower leg. Service treatment records from September 1986 note treatment for shin splints. The Veteran’s June 1995 medical examination report and medical history report upon retirement are normal with no indication of any bilateral leg disabilities. Post-service treatment records from April 2015 note treatment for left lower leg pain; suspicion of deep vein thrombosis. July 2016 post-service treatment records note the Veteran was treated for right leg swelling at and below the knee. The March 2018 NP noted that the Veteran’s bilateral leg pain due to back disability was due to his military service as he was treated for the pain in service and is currently being treated for his ongoing issues. As noted, this opinion is entitled to some probative weight. Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. (Continued on the next page)   The evidence is thus at least evenly balanced as to whether the Veteran’s current bilateral leg disability was incurred in service. The Veteran has provided competent evidence of chronic lower leg pain and swelling he stated was caused by service and has been ongoing since service, and the March 2018 medical professional opined that the current bilateral leg pain was due to service. With regard to whether the current disability requirement has been met, the Federal Circuit recently held that pain alone can constitute disability if it causes impairment in earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In this case, the evidence shows that the Veteran has bilateral leg pain and swelling that caused impairment in earning capacity and is due to an in-service injury. The requirements for service connection have therefore been met. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel