Citation Nr: 21000755 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-34 768 DATE: January 6, 2021 ORDER Entitlement to service connection for a right shoulder condition, to include as secondary to a service-connected cervical spine condition is denied. REMANDED Entitlement to service connection for alcohol dependence to include as secondary to an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran’s right shoulder condition is not causally or etiologically due to service and is not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder condition due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1131,5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to July 1982 and from October 1984 to November 1987. This matter was before the Board of Veteran’s Appeals (Board) previously. The Board remanded both issues in order to obtain additional medical opinions. 1. Entitlement to service connection for a right shoulder condition, to include as secondary to a service-connected cervical spine condition The Veteran testified at a hearing before the Board in May 2017, conducted by video conference. The Veteran explained that he was injured in an accident during his service in 1979, where he landed on his right side. The Veteran contends that his present right shoulder condition is service-connected due to that incident. See Hearing Transcript, May 2017. Alternatively, the Veteran contends that he has a right shoulder disability that is secondary to his service-connected cervical spine disability. With regard to a current disability, it is conceded that the Veteran suffers from a current right shoulder disability. In June 2019 the Veteran was afforded a VA shoulder examination and was diagnosed with right shoulder strain, right rotator cuff tendonitis, right glenohumeral joint dislocation and right shoulder joint instability. In order to grant direct service connection, the Veteran must suffer from a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran was treated for injuries related to an electrocution while in service in 1979. Although the Veteran’s service treatment records (STRs) do not show treatment for a right shoulder injury, the Veteran testified during his May 2017 videoconference hearing, that he was thrown approximately seven feet across the room by the electric shock, striking his right shoulder and right side of his head against an electrical panel which he knocked over with his body. The Veteran is competent to describe his inservice injury and current right shoulder symptoms and the Board finds his report of the injury to be credible. While the Veteran sustained an injury to his right shoulder during service, the weight of the evidence does not establish that he sustained a chronic right shoulder disability during service. On the contrary, a subsequent June 1982 report of medical examination indicates that while the Veteran reported a history of swollen or painful joints, clinical examination of his upper extremities was within normal limits. The examiner noted that the symptoms were occasional and were not currently disabling. The specific joints affected were not identified. Likewise, a November 1987 service separation examination report indicates that clinical examination of his upper extremities was within normal limits. The normal examination of the Veteran’s upper extremities following the inservice injury weighs strongly against a finding that the Veteran had continual or chronic right shoulder impairment following his injury. This finding is supported by a June 2019 medical opinion. After reviewing the Veteran’s medical history and claims folder, and conducting a physical examination of the Veteran, the examiner opined that the Veteran’s current right shoulder disability was not etiologically related to his active service to include the electrocution. Secondary service connection is possible for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). It is conceded that the Veteran is service connected for cervical spondylosis and cervical degenerative disc disease. 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) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). With respect to secondary service connection, the June 2019 examiner opined that the Veteran’s shoulder pain was related to irritation in the C6 nerve root. However, the examiner did not make a determination regarding whether or not the Veteran’s current right shoulder disabilities, to include his functional limitations due to pain, were caused or aggravated by his service-connected cervical spondylosis and cervical degenerative disc disease. In November, 2019, the Board remanded the Veteran’s right shoulder disorder claim so that an appropriate examiner could consider whether or not the Veteran’s currently diagnosed right shoulder condition, to include functional limitation due to pain, is at least as likely as not proximately due to, or aggravated beyond its natural progression, by his service-connected cervical spondylosis and cervical degenerative disc disease. In March 2020, the Veteran was afforded a VA examination and the examiner found it is less likely than not the Veteran’s claimed right shoulder condition is proximately due to or the result of cervical spondylosis and degenerative disc disease. The examiner reported reviewing the Veterans’ records thoroughly. The examiner itemized the medical reports by date and included summary paragraphs of the Veteran’s medical records. The examiner opined that the pathology of the Veteran’s cervical spine has “no way to directly impact the right shoulder.” The examiner continued that while there has been some suggestion in the records that the Veteran’s cervical spine condition may have impacted the right shoulder, EMG testing suggested that if there was any correlation to a shoulder, it would be on the left side not the right. He opined further that there was no evidence of cervical root irritation on the right side. The examiner concluded that thus, there was no evidence the Veteran’s cervical spine condition indirectly caused a right shoulder condition. With respect to aggravation, the examiner noted that there was no aggravation of a right shoulder disability by the Veteran’s service-connected cervical spine disability. In this regard, the examiner observed there was no competent evidence in the service treatment records that associated any symptoms of his neck to his right shoulder. Rather, the right shoulder was noted to have separate injuries independent of the cervical spine. It was noted that his history of working construction and heating and cooling without any documented complaints regarding the right shoulder and at one point was able to lift 100 pounds. The examiner observed that this history would be inconsistent with a right shoulder condition affected by a cervical spine root disorder. The VA examiner in the March 2020 report provided summary paragraphs for each document reviewed. These included the Veteran’s medical treatment records, lay statements, and remand documents dated as follows: Medical June 12, 1978, November 2, 1987, August 22, 2006, August 30, 2010, September 27, 2010, a right shoulder x-ray report dated March 22, 2011, Medical July 26, 2011, July 11, 2012, November 6, 2012, reviewed the Veteran’s lay statement in support of claim dated December 12, 2012, Medical December 18, 2012, reviewed the Veteran’s lay statement in support of claim dated March 12, 2013, June 21, 2014, Veteran’s representative statement in support of claim dated December 22, 2016, Board of Veteran’s Appeals document dated September 8, 2017, Medical January 24, 2019, February 19, 2019, May 6, 2019, June 26, 2019, reviewed a November 21, 2019 Board remand document. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996). The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. VA is to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Therefore, the Board will assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159 (a)(2); Barr, 21 Vet. App. at 307-10. However, the Veteran is not competent to render an opinion as to the cause or etiology of any current right shoulder disability because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, although the Veteran sustained an injury during service and has a current right shoulder disability, the Veteran is not competent to identify a particular etiology of his current disability. To the extent that the Veteran contends that he has had right shoulder symptomatology continuously since his inservice injury, the Board finds his statement are not credible. In this regard, examinations of the Veteran’s upper extremities during service following the injury were clinical normal. These findings taken in close proximate to the injury weigh strongly against a finding that the Veteran’s current symptoms have been continuous since service. Turning to the more recent VA medical examination, the Board finds the June 2019 opinion addressing direct service connection and the March 2020 opinion addressing secondary service connection are thorough and supported by explanations. The opinions are based on an extremely thorough review of the Veteran’s medical evidence, lay statements, Veteran’s Representative statement, and the Board remands. The opinions are based squarely on the claims folder and supported by clinical evidence of record. The VA examiners considered the Veteran’s lay assertions. The Veteran’s history was considered. The VA examiner addressed the central medical issues in this case and provided a rationale for opinions. There is no probative support in the record that the March 2020 VA examinations was inaccurate or inadequate. Despite the Veteran’s assertions, the VA medical opinion dated March 2020 found the right shoulder condition, to include as secondary to a service-connected cervical spine condition, is less likely than not proximately due to or the result of the Veteran’s service connected cervical spondylosis and degenerative disc disease disability. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has considered both the medical and the lay evidence. After deliberate review and with due consideration of the Veteran’s statements, the Board concludes that the preponderance of the evidence does not support a competently identified nexus with regard to the Veteran’s claimed right shoulder condition, to include as secondary to a service-connected cervical spine condition, and the claim is therefore denied. REASONS FOR REMAND 1. Entitlement to service connection for alcohol dependence to include as secondary to an acquired psychiatric disorder is remanded. The Veteran’s claim for service connection for alcohol dependence was previously remanded by the Board in November 2019 and September 2017. In both instances, the Board afforded the Veteran a VA examinations in order to determine whether the Veteran’s alcohol abuse disability was due to, or aggravated by, a service-connected psychiatric disorder. The Board apologizes for the additional delay in remanding the Veteran’s claim but finds that it is necessary in order to make an adequate evaluation of the disability claim. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 C.F.R. § 3.159 (c)(4).When medical evidence is not adequate, the VA must supplement the record by seeking an advisory opinion or ordering another examination. 38 C.F.R. § 3.159 (c)(4)(i). The Veteran has a service connected psychiatric disorder. In August 2019, the Regional Office (RO) granted the Veteran service connection for an unspecified depressive disorder (claimed as depression and insomnia) with an evaluation of 30 percent effective March 31, 2009 and 70 percent from July 7, 2017. The Veteran has a current diagnosis with regard to alcohol dependence, in remission. A review of the Veteran’s service treatment records and post-service treatment records shows that he was treated in service for alcoholism and was diagnosed in September 2018 with chronic alcoholism, in remission. In its November 2019 Opinion, the Board found that the Veteran’s chronic alcoholism, in remission, is not equivalent to no diagnosis. The law generally prohibits the payment of compensation for disabilities resulting from a claimant’s abuse of alcohol or drugs, see 38 U.S.C. §§ 105 (a). However, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit held that 38 C.F.R. § 3.310 authorizes compensation for an alcohol or drug abuse disability when the claimant’s alcohol or drug abuse disability is the secondary result of a separate service connected disability, such as a psychiatric disability. Id. at 1381. The Veteran’s alcohol abuse disability claim must be evaluated with respect to the relationship, if any, of the Veteran’s in service alcohol dependence and the in-service onset of his service-connected depressive disorder. Thus, the Board must remand the issue of service connection for alcohol abuse. The examiner is asked to assess the Veteran’s in-service alcohol dependence and the in-service onset of his service-connected depressive disorder as set forth below in the remand order. In November 2019, the Board remanded the Veteran’s claim in order to obtain an additional medical opinion. Unfortunately, the opinion obtained in February 2020 was not adequate. The examiner opined that the Veteran’s alcohol dependence disorder and his mental health symptoms did not coincide within the same time period. That information is not consistent with other evidence. The Veteran reports that he attended Alcohol Rehabilitation Programs three different times while in the Navy, each with a duration of about six weeks. Moreover, the Veteran is service connected for a depressive disorder due to the evidence in the Veteran’s medical records that reflects treatment and symptoms during his active service. As such, an additional medical opinion is warranted prior to adjudicating the instant claim. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate specialist, other than the examiner who performed the February 2020 evaluation. After reviewing the relevant records and examining the Veteran, the VA examiner should then indicate whether the Veteran’s alcohol abuse disability, in remission, is at least as likely as not (50% probability or greater) due to, the result of, or aggravated by the Veteran’s service-connected unspecified depressive disorder. If the examiner finds that that the Veteran’s alcohol abuse was aggravated by his depressive disorder, the examiner should quantify the degree of aggravation. The examiner is asked to specifically cite to the evidence in the Veteran’s claims file records, including but not limited to clinical records, service treatment records (STR’s) and the Veteran’s statements regarding his symptoms. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide full and complete explanations for all opinions. While providing the requested rationale, the examiner is asked to cite to the specific pertinent evidence of record, including clinical records and the Veteran’s statements regarding the onset of his symptoms. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.M. Schneider 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.