Citation Nr: 20009867 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 16-19 783A DATE: February 5, 2020 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a left shoulder disability is granted. FINDINGS OF FACT 1. The Veteran has a current neck disability caused by his active military service. 2. The Veteran has a current left shoulder disability caused by his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1987 to January 2007. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from the August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the Veteran’s neck disability and left shoulder disability. The Veteran testified at a Board hearing before the undersigned in June 2019; a transcript of that hearing is associated with the claims file. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Neck Disability The Veteran contends that his neck disability was caused by an in-service fall in December 1987. The Veteran has a current neck disability, diagnosed by the June 2014 VA examiner. As such, the first element of service connection is met. The Veteran’s service treatment records (STRs) document his fall while in service in December 1987. Thus, the Board finds that the second element of service connection, an in-service incurrence, has been met. Therefore, this case turns on whether the Veteran’s current neck disability was caused by his active service. The Veteran attended a VA examination in June 2014. The examiner opined that it was less likely than not that the current neck condition is proximately due to or the result of a continuation of symptoms shown in service. He reasoned that in the medical records he reviewed there were records prior to service that shows the Veteran had a cervical spine injury while playing football in 1983. He stated that these records showed that although the Veteran did have an injury to the cervical spine, which at first was thought to be significant, turned out to not be significant as far as serious injury was concerned. The VA examiner concluded that since there were no other entries in service or preservice medical records that he reviewed showing any other cervical spine injury, it is less likely that the current neck condition is probably due to or the result of a continuation of symptoms shown in service. The June 2014 VA examiner also provided an opinion regarding the Veteran’s neck disability as secondary to his service-connected temporomandibular joint (TMJ) disorder, stating that it is less likely than not that the current neck condition is proximately due to or the result of residual complication of the service connected TMJ disorder or right shoulder condition. He provided the same rationale as above. The Veteran testified at the June 2019 hearing. He stated that he was blown off of the flight deck into the catwalk during his December 1987 fall. He landed on his head and neck and shoulder after about a six-foot fall. After a few days in medical, he was released. Upon release, his back, shoulder, and neck continued to hurt. He said he was treated with Motrin for the pain. The Veteran’s private orthopedic surgeon, Dr. R.M.D., provided an August 2019 medical opinion. He stated that it was highly likely that the Veteran’s lower levels of his cervical spine were injured by the accident in 1987. The current status of C5-6 and C6-7 are probably the result of the head/neck trauma sustained during a fall from a height. He stated that it is well established in the spinal trauma literature that cervical spine injuries are closely associated with head injuries. The Veteran suffered a helmet-splitting trauma which resulted in at least a concussion if not more extensive traumatic brain injury. Workup and evaluation of the cervical spine in available medical records is sparse at best. It has been classic clinical protocol since at least the mid-1980s to carefully evaluate the cervical spine each time a head trauma is sustained. The workup in 1987 seems to be incomplete for the cervical spine. Therefore, within medical probability, it is highly likely that the cervical spine was injured in the 1987 fall from a height. Additionally, Dr. R.M.D. further reasons within his accompanying discussion notes that the pathological levels at C5-6 and C6-7 would not have been related to the Veteran’s preservice 1983 football injury. Considering the evidence above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s neck disability is related to his active service. The Board finds the Veteran’s testimony regarding experiencing pain in his neck immediately after the fall credible. The Veteran provided a reasonable explanation for not seeking further medical treatment for his neck pain during service, that he did not wish to be taken off flight status. Further, the Board finds the private positive nexus opinion of Dr. R.M.D. to be the most probative medical evidence of record. Dr. R.M.D. provided a thorough and logical rationale supporting his medical opinion. He detailed his review of the Veteran’s medical records as shown in his supporting notes he provided along with his August 2019 opinion letter. The Board notes that the June 2014 VA examiner essentially reasoned that the Veteran’s neck disability pre-existed service, and was not aggravated by his active service, and thus his current disability is attributable to his pre-service football injury and not the December 1987 fall. This is troublesome as the VA examiner made contradictory findings. The Veteran cannot both have a pre-existing neck injury that is the source of his current disability and also be considered to be sound upon entry of service—which is what the examiner ultimately concluded in his opinion, quoting medical records that the Veteran had not had pain in his neck since 1983, and using that as a basis for concluding his current neck disability was due to his 1983 injury. The Board finds that the June 2014 VA opinion is less probative than the August 2019 private opinion of Dr. R.M.D., and therefore affords it less weight. Based on the evidence of record, including the Veteran’s credible reports and the August 2019 private medical opinion, the Board finds that a sufficient nexus has been established between the Veteran’s current neck disability and his in-service fall in December 1987. As such, the evidence is at least in equipoise regarding whether the Veteran’s neck disability began in-service. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s neck disability begin in-service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Left Shoulder Disability The Veteran contends that his left shoulder disability is due to his in-service fall that occurred in December 1987. The Veteran has a current left shoulder disability as diagnosed in the August 2019 private medical opinion. As such, the first element of service connection is met. As discussed, the Veteran’s fall in December 1987 is documented in his STRs. Thus, the second element of service connection has been met. Therefore, this case turns on whether the Veteran’s current left shoulder disability was caused by his active service. The Veteran attended a VA examination in December 2006 regarding his right shoulder. His left shoulder was shown to be normal upon examination, but no specific VA examination has ever been performed for the Veteran regarding his left shoulder disability. The Veteran’s private orthopedic surgeon, Dr. R.M.D., provided an August 2019 medical opinion. He stated that the Veteran’s left shoulder condition is remarkably similar to the right shoulder, which is service-connected. Contributing factors include probably blunt trauma to the shoulder girdle/scapular area in the fall of 1987, plus the time spent as a rescue swimmer. He stated that it is well established in the sports medicine literature the cause and effect relationship between swimming and shoulder pathology. Therefore, he ultimately opined it is more likely than not that the Veteran’s left shoulder condition is a result of service-related activities. The Veteran testified at the June 2019 hearing that after the 1987 fall he experienced quite a bit of burning in his left shoulder. He was treated with Motrin for the pain when he did complain of it, and he did not seek further treatment specifically for his left shoulder as he was a flyer and did not want to frequent sick bay often. He stated that he did go to see the flight surgeon for cortisone shots in his shoulder if he was in a lot of pain. Considering the evidence above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s left shoulder disability is related to his active service. The Board finds the Veteran’s testimony regarding experiencing burning in his left shoulder immediately after the fall credible. The Veteran provided a reasonable explanation for not seeking further medical treatment for his left shoulder pain during service. Further, the Board finds the private nexus opinion of Dr. R.M.D. to be the most compelling evidence of record. Dr. R.M.D. provided a thorough and logical rationale supporting his medical opinion relating the Veteran’s left shoulder disability to either the 1987 fall or his time as a rescue swimmer. He detailed his review of the Veteran’s medical records as shown in his supporting notes he provided along with his August 2019 opinion letter. Based on the evidence of record, including the Veteran’s credible reports and the August 2019 private medical opinion, the Board finds that a sufficient nexus has been established between the Veteran’s current left shoulder disability and his in-service fall in December 1987. (Continued on the next page)   As such, the evidence is at least in equipoise regarding whether the Veteran’s left shoulder disability began in-service. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s left shoulder disability begin in-service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.