Citation Nr: 21001965 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-01 941 DATE: January 12, 2021 ORDER Entitlement to service connection for post-operative left rotator cuff tear (claimed as left shoulder trauma) as secondary to the Veteran’s service-connected right shoulder acromioclavicular atrophy is denied. FINDING OF FACT The Veteran’s post-operative left rotator cuff tear (claimed as left shoulder trauma) is not secondary to his service-connected right shoulder acromioclavicular atrophy. CONCLUSION OF LAW The criteria for service connection for post-operative left rotator cuff tear (claimed as left shoulder trauma) due to the Veteran’s service-connected right shoulder acromioclavicular atrophy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1989 until his honorable discharge in July 1994. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a September 2012 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for the Veteran’s post-operative left rotator cuff tear (hereinafter referred to as a left shoulder disability) on a direct and secondary service-connection basis (the secondary basis being a service-connected right shoulder disability). The Veteran filed a timely notice of disagreement (NOD) as to the rating decision, after which the RO issued a statement of the case (SOC) continuing denial of service connection for the Veteran’s left shoulder disability. The Veteran then filed a timely appeal. In July 2014, the Veteran and his spouse testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 30 days to allow for the submission of additional evidence. In an August 2014 decision, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA medical examination and opinion addressing the Veteran’s theory of secondary service connection, particularly the theory of aggravation, which the RO accomplished. In a May 2016 supplemental statement of the case (SSOC), the RO continued denial of the Veteran’s claim for service connection for his left shoulder disability. In a July 2017 decision, the Board denied the Veteran’s claim for service connection for his left should disability on both a direct and secondary service connection basis. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2018 Joint Motion for Remand (JMR), the parties asked CAVC to vacate a portion of the Board’s July 2017 decision. In the JMR, the parties stipulated that the Veteran was “not appealing that portion of the Board decision that denied entitlement to direct service connection” for his left shoulder disability. Rather, the parties stipulated that the August 2012 VA examination and the February 2016 VA examination were inadequate because the examiners did not adequately discuss the theory of aggravation with respect to the Veteran’s argument for secondary service connection. CAVC subsequently entered an order consistent with the parties JMR in August 2018 partially vacating the Board’s July 2017 decision and remanding the case to the Board for further action. In a March 2019 decision, pursuant to the JMR and CAVC order, the Board remanded the Veteran’s claim for service connection for his left shoulder disability to the RO for further development. The Board instructed the RO to obtain an addendum opinion from a qualified medical professional as to the Veteran’s left shoulder disability, specifically asking the VA medical professional to address whether the Veteran’s left shoulder disability was aggravated by his service-connected right shoulder disability. The RO accomplished the Board’s directives and issued a June 2020 SSOC continuing denial of the Veteran’s claim for service connection. In September 2020, the Board again remanded the case to the RO for further development. The Board found the opinion obtained by the RO was inadequate because the medical professional did not provide an adequate discussion of the theory of aggravation. Consequently, the Board instructed the RO to obtain an addendum opinion that adequately addressed this theory of secondary service connection. The RO obtained an addendum opinion and issued a November 2020 SSOC continuing denial of service connection for the Veteran’s left shoulder disability. The case now returns to the Board. Entitlement to service connection for post-operative left rotator cuff tear (claimed as left shoulder trauma) as secondary to the Veteran’s service-connected right shoulder acromioclavicular atrophy. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). At issue here is the theory of secondary service connection. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) 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). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. Analysis First element: A current disability As to the first element of secondary service connection, a current disability, the Veteran’s medical records, as well as his competent, credible, and probative lay statements and testimony, clearly establish that he presently has a left shoulder disability, best characterized as a post-operative left rotator cuff tear. The events leading to the Veteran’s left shoulder disability are significant to the overall analysis in this case and need to be addressed thoroughly. According to a May 2011 VA nursing outpatient note, the Veteran complained of left shoulder pain at that time. He stated that three weeks prior to his visit he “stopped himself from falling” and believed he hurt his shoulder at that time. A June 2011 VA primary care note recorded that the Veteran appeared at a VA medical center complaining of left shoulder pain, which he had experienced over the last two months. He told the treating VA medical professional that he “fell against his left shoulder a few months ago and developed pain at that time.” He stated that due to his right shoulder disability, he was unable to use his right shoulder, so he relied on his left arm/shoulder. In July 2011, he was referred for an MRI, which revealed a “large full-thickness tear of the supraspinatus and infraspinous tendons with retraction” of the left shoulder. In November 2011, he underwent surgical repair of his left shoulder. During his June 2014 Board hearing, the Veteran testified that he sustained his left shoulder injury because his right shoulder could not support any weight. Thus, he became more dependent on his left side due to his right shoulder disability. He testified that while at work, he had to place his left shoulder in awkward positions to climb ladders, hold equipment, and perform tasks overhead. He asserted that he injured his left shoulder because of his need to compensate for his right shoulder disability. The Veteran did not provide any testimony about the fall he sustained in May 2011 or any information related thereto. Nor did he provide testimony about whether he was compensating for his right shoulder prior to his fall in May 2011. The Veteran’s spouse and work colleagues offered statements supporting the Veteran’s assertion that he suffered from pain in both of his shoulders and that he had to compensate with his left shoulder for limitations in his dominant right shoulder. The Veteran submitted a July 2014 disability benefits questionnaire (DBQ) following the Board hearing that was completed by his treating surgeon. The treating surgeon recorded that the Veteran injured his left arm during a fall in 2011, and due to his previous injury to his dominant right shoulder, he was forced to catch himself with his left arm. The treating surgeon also recorded that the Veteran was unable to perform any overhead work, anything above waist-level, or any lifting of more than five pounds due to his left shoulder disability. In February 2016, the Veteran was afforded a VA examination to assess his left shoulder disability. The examiner confirmed the Veteran had a left shoulder rotator cuff tear. The examination revealed that the Veteran had difficulty with range of motion and instability in his left shoulder. The examiner noted that the Veteran experienced pain when attempting to perform work overhead. Based on the competent, credible, and probative evidence of record just discussed, the Board finds the first element is satisfied. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. The Veteran has a left shoulder disability, which includes pain that limits functionality. Saunders v. Wilkie, 886 F.3d 1356 (2018) (pain alone can qualify as a disability where it diminishes the body’s ability to function under the ordinary conditions of daily life including employment, even where it is not diagnosed as connected to a current underlying condition). The Board notes that prior to May 2011, the Veteran did not report to medical providers of any pain in his left shoulder that caused functional limitation due to his work or any other activity. A review of his medical records is negative for any such indication. In addition, during the Veteran’s June 2014 Board hearing, he did not testify that he suffered from such pain prior to his fall in 2011. Nor did his February 2012 statement in support of claim, his spouse’s February 2012 statement in support of claim, his colleague’s February 2012 statement in support of claim, his neighbor’s June 2014 correspondence, or his colleague’s June 2014 correspondence identify left shoulder pain that resulted in functional limitation prior to his fall in 2011. All evidence of record indicates that the Veteran suffered from left shoulder pain resulting in functional limitation following his 2011 fall and surgery. Based on the evidence, the Board finds the Veteran did not, as a result of his use of his left arm/shoulder at work, suffer from pain that resulted in functional limitation prior to his fall in 2011. Therefore, the Veteran did not have a disability based on pain prior to 2011. See Saunders, 886 F.3d 1356. Second element: A current service-connected disability As to the second element, a current service-connected disability, the Veteran is currently service connected for right shoulder acromioclavicular joint arthropathy with rotator cuff tendonitis (right should disability). He has been service connected for his right shoulder disability since November 9, 2005. This is the service-connected disability that he cites as the basis for his present secondary-service-connection claim. The Veteran is also service connected for four additional disabilities, but he does not argue that any of his other service-connected disabilities are the basis for his secondary-service-connection claim, nor does a reasonable review of the record raise any such claims. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). Therefore, the Board finds the second element is satisfied. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. Third element: Whether the Veteran’s current left shoulder disability was caused by or aggravated by his service-connected right shoulder disability The Board finds the evidence weighs against finding that the Veteran’s left shoulder disability was caused by or aggravated by his service-connected right shoulder disability. The Veteran asserts that his left shoulder disability was caused by or aggravated by his right shoulder disability because he had to compensate for the loss of use of his dominant right shoulder by using his left shoulder/arm. The Veteran points two distinct events in support of his claim. First, he asserts that, in relation to the fall he sustained in May 2011, he would not have incurred his current left shoulder disability if he did not have to compensate for the limited use of his dominant right shoulder. Second, he asserts that he had to compensate for the limited use of his right shoulder during his occupation by using his left arm/shoulder, which led to his left shoulder disability. Causation “Proximate cause” is defined as “[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.” Black’s Law Dictionary 1225 (6th ed. 1990); see Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev’d on other grounds by, Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003) (adopting “proximate cause” definition); VAOPGCPREC 6-03. When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. VAOPGCPREC 6-03 (citing Shyface v. Secretary of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999)). VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. To begin, the Board notes two VA medical examiners (August 2012 and February 2016/April 2016) and one VA-contracted medical examiner (November 2020) provided respective opinions as to the etiology of the Veteran’s left shoulder disability with respect to causation on a secondary basis. The Board finds that each examiner conducted an adequate review of the Veteran’s medical records at the time of their respective examinations/opinions and properly considered relevant lay statements. Absent evidence to the contrary, the Board finds each examiner is competent. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds each examiner is credible. The August 2012 examiner opined that “[t]his very large [Veteran] caught his fall with [left] upper [extremity] and tore his cuff which had NOTHING to do with his [right] shoulder.” (Emphasis in original). The Board finds this opinion is not particularly persuasive because it is conclusory in nature. The February 2016 VA examiner initially provided a positive nexus opinion for the Veteran. He opined that the Veteran’s left shoulder disability was at least as likely as not proximately due to or the result of the Veteran’s service-connected right shoulder disability. He reasoned that because the Veteran had limited functionality in his right shoulder, he instinctively reached with his left arm while falling, taking his considerable weight onto his left shoulder. In April 2016, however, the VA examiner retracted his February 2016 opinion because he had a misunderstanding of the legal concept of proximate causation. See April 2016 Email Correspondence. The examiner’s new opinion addressed each of the Veteran’s cited events, i.e., his May 2011 fall and his use of his left arm at work. The examiner now opined, “The post-service fall indeed ha[d] nothing to do with the veteran’s military service[,] and if he had not fallen[,] he would not have grabbed with his other arm rather than the [service-connected] one. [So,] it is unlikely to be related to [his left] shoulder surgery and [left] shoulder condition.” To the Board, this rationale is unclear and confusing. The Board cannot decipher the examiner’s logic; whether he was referencing the Veteran’s fall or the Veteran’s right shoulder disability with respect to the Veteran’s left shoulder disability, nor can the Board understand if this was an opinion as to direct service connection or secondary service connection. The Board cannot afford this any probative value. As to the Veteran’s work-related use of his left shoulder, the examiner opined that it was unlikely that he used his left arm more and used it in awkward positions because “usually [what] happens with an overuse is that the individual uses the non‐dominant limb less frequently not in an awkward manner; also the shoulder is [a] very flexible joint and there is no position that is so awkward[,] even if used frequently[,] that would tear the cuff.” The examiner opined that the Veteran’s rotator cuff tear was completely due to his fall. The Board finds this opinion and rationale clear, persuasive, and probative of on whether the Veteran’s right shoulder disability caused his left shoulder disability. In November 2020, a VA-contracted examiner provided an opinion as to the theory of aggravation, which will be discussed in a moment. Nevertheless, the Board finds the rationale supporting that opinion is significant as it relates to the theory of causation as well. The Board has located no legal precedent that restricts the Board from considering the rationale underlying one theory if it also contains relevant evidence pertaining to another theory. See 38 U.S.C. § 7104(a) (the Board’s responsibility is to evaluate the entire record on appeal); 38 U.S.C. § 1154(a) (the Board must give due consideration to all pertinent medical and lay evidence). The November 2020 VA-contracted examiner stated that “[a] condition of one shoulder does not cause a condition of the contralateral shoulder. This is established medical knowledge and practice, supported by standard texts such as Wheeless. They are anatomically separate.” While short and to the point, the Board finds this rationale clear and well-reasoned. The Board affords this rationale significant probative value. The Board notes that examiners have no reasons-and-bases requirement; their opinion is adequate if it rests on correct facts and reasoned medical judgment to fully inform the Board on a particular medical question. Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The Board finds that the April 2016 VA examiner and November 2020 VA-contracted examiner’s respective opinions and rationales, as discussed above, are the most probative evidence of record as it pertains to the theory of causation with respect to secondary service connection in this case. Each examiner relied on the Veteran’s medical history, relevant lay statements, and their own medical knowledge, experience, and judgment when forming their respective opinions and rationales. The Board finds the evidence weighs against finding that the Veteran’s left shoulder disability was caused by his service-connected right shoulder disability because (1) the shoulders are anatomically separate, (2) it was the Veteran’s fall, irrespective of his right shoulder, that caused his left shoulder disability, and (3) the Veteran’s use of his left shoulder in response to the limited use of his right shoulder did not result in his rotator cuff tear or residual pain. The Board acknowledges the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran if the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). While the Board finds the Veteran competent to report his sensations of pain and experiences leading to his left shoulder disability, without evidence showing that he has the necessary medical training or expertise, he cannot competently opine that his left shoulder disability was caused by his right shoulder disability in this particular case. See 38 C.F.R. § 3.159(a)(1)–(2); Jandreau, 492 F.3d at 1377. The same reasoning and conclusions also apply to the statements provided by the Veteran’s spouse, friends, and work colleagues. Id. Aggravation “Aggravation” in the context of secondary service connection is demonstrated when there is “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease.” 38 C.F.R. § 3.310(b). The Board finds only one medical opinion adequately addresses the theory of aggravation in this case, the November 2020 VA-contracted examiner’s opinion. For the same reasons previously discussed, the Board finds the November 2020 VA-contracted examiner competent and credible. The examiner opined that it was less likely than not that the Veteran’s left shoulder disability was aggravated beyond its natural course due to any cause, including the Veteran’s service-connected right shoulder disability. As already discussed, the examiner stated a condition of one shoulder does not cause a condition of the opposite shoulder based on established medical knowledge; they are anatomically separate. The examiner stated, “[t]his applies to aggravation as well.” November 2020 VA-Contracted Medical Opinion. The examiner then noted that the Veteran’s 2012 VA DBQ reported a “good” response to the surgical repair in 2011 and there were negative examination responses to provocative rotator cuff tests. The examiner also stated that “patients with rotator cuff conditions and surgeries commonly have residuals identifiable on these maneuvers,” and the Veteran’s 2012 DBQ “suggests an excellent, continued response to the surgical procedure.” November 2020 VA-Contracted Medical Opinion. The Board recognizes that the Veteran submitted a July 2014 DBQ completed by his treating surgeon, which indicated positive rotator cuff tests. The Board finds this evidence does not affect the probative value of the November 2020 VA-contracted examiner’s rationale. The Board interprets the November 2020 VA-contracted examiner’s citation to 2012 DBQ as demonstrating that shortly after the Veteran’s surgery and therapy, his rotator cuff was doing relatively well. The 2014 DBQ is approximately three years removed from the Veteran’s surgery, and thus does not bear on what the Veteran’s response to his surgery was shortly after. Moreover, the Veteran’s July 2014 rotator cuff test results do not establish that his left shoulder disability was aggravated (or caused) by his right shoulder disability. His treating physician who completed the July 2014 DBQ provided no such opinion on the subject. Thus, the July 2014 DBQ is not probative as it relates to the theories of secondary service connection. The November 2020 VA-contracted examiner directly addressed the Veteran’s claim regarding his fall in 2011. While the Veteran claimed his left shoulder disability was due to overcompensating for his right shoulder, the examiner reasoned “the fall was not caused by the shoulder itself and one generally cannot control the direction of the fall or the reflexive response.” November 2020 VA-Contracted Medical Opinion. The examiner reasoned that his injury, more likely than not, if due to the fall, would have occurred with or without his right shoulder injury based on the Veteran’s lay statements that the fall was initiated for reasons other than his right shoulder. The examiner concluded that it was less likely than not that the Veteran’s left shoulder disability was incurred in overcompensating for his right shoulder disability. The Board finds no competent, credible, and probative medical evidence within the record that contradicts the November 2020 VA-contracted examiner’s opinion or rationale. The Board finds that the November 2020 VA-contracted examiner’s opinion and rationale, as discussed above, is the most probative evidence of record as it pertains to the theory of aggravation with respect to secondary service connection in this case. The examiner relied on an accurate medical history, relevant lay statements, and his own medical knowledge, experience, and judgment when forming his opinion and rationale. The Board finds the evidence weighs against finding that the Veteran’s left shoulder disability was aggravated by his service-connected right shoulder disability because (1) the shoulders are anatomically separate, (2) it was the Veteran’s fall, irrespective of his right shoulder, that caused his left shoulder disability, (3) the Veteran’s use of his left shoulder in response to the limited use of his right shoulder did not result in his left shoulder disability, and (4) his left shoulder disability has not been aggravated beyond its natural course due to his right shoulder disability. For the same reasons previously discussed, the Veteran is competent to report his sensations of pain and experiences leading to his left shoulder disability, but without evidence showing that he has the necessary medical training or expertise, he cannot competently opine that his left shoulder disability was aggravated by his right shoulder disability in this particular case. See 38 C.F.R. § 3.159(a)(1)–(2); Jandreau, 492 F.3d at 1377. The same reasoning and conclusions also apply to the statements provided by the Veteran’s spouse, friends, and work colleagues. Id. Therefore, the preponderance of the evidence is against finding that the Veteran’s left shoulder disability was caused by or aggravated by his right shoulder disability. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. Accordingly, the Veteran is not entitled to service connection on a secondary basis for his left shoulder disability. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.