Citation Nr: 21064046 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 08-21 036 DATE: October 18, 2021 ORDER Service connection for a neck disability is granted. Service connection for a bilateral shoulder disability is granted. Service connection for depression is granted. Service connection for erectile dysfunction (ED) is granted. FINDINGS OF FACT 1. A neck disability is causally related to service, including the physical demands thereof. 2. Bilateral shoulder, psychiatric, and ED disabilities were caused or aggravated by the now-service connected neck disability, related pain disorder, and the treatment thereof. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability, variously diagnosed, have been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a bilateral shoulder disability, variously diagnosed, are met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for service connection for depression are met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for service connection for ED are met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1972 to October 1974 and February 2003 to June 2003, including foreign service in Germany and with additional periods of active duty training (ACDUTRA). For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. Historically, these appeals were denied by the Board in May 2019. However, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand in March 2020, thereby vacating the Board's determination and remanding the matters for further consideration. In part, the JMPR was based upon outstanding treatment records at the time of the May 2019 decision. The Board notes that these records have not yet been obtained. However, a grant of the pending appeals is possible upon the existing body of evidence, such that a remand for this purpose would not serve the Veteran's best interests. Service Connection The Veteran has offered multiple theories of entitlement as it relates to these appeals. The Board's analysis will be limited to those theories upon which the appeals are now granted. As the appeals require similar analyses, they will be addressed simultaneously herein. In sum, the Veteran contends that he developed a neck disorder during service, and that this condition contributed to a bilateral shoulder disorder. The associated pain caused a psychiatric disorder, with related medications leading to his ED. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (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 present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) a nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, there is competent evidence of current disabilities. During the period on appeal, VA examiners have diagnosed the Veteran with assorted neck and bilateral shoulder disorders; private treatment records also show current symptoms and treatment for depression and ED. See, e.g., VA examinations dated October 2012 and November 2014; August 2021 private treatment letter. As such, the first element of direct/secondary service connection has been met for these appeals. Next, the Veteran contends that his neck disability had its onset during his second period of service and has persisted since that time. The record is in controversy as to whether the Veteran's neck disability preexisted his second period of service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003 (July 16, 2003). Of record are two October 2012 and November 2014 VA opinions which the Board previously found to be inadequate; thus, these opinions do not merit further discussion herein. See September 2014 Board remand; April 2018 advisory medical opinion request. However, a November 2018 Veterans Health Administration (VHA) advisory opinion concludes that the evidence "is insufficient to make a determination if the cervical spine disorder existed prior to the active duty period that began [in February 2003]." The examiner noted that there was no available medical record prior to February 2003 which documented the Veteran's history, or examination where he "clearly complained or refuted the existence of neck pain." In contrast, an August 2021 private examiner acknowledged that the Veteran injured his back in a work-related accident in 1995. While there was "some indication" that he also had cervical spine complaints at that time, this was unconfirmed by medical records. Instead, the Veteran successfully qualified for active duty service in February 2003, and a cervical spine disability developed thereafter. The claims file also contains a December 2020 buddy statement from the Veteran's friend of more than 40 years. Therein, it was reported that "although it took him some time," the Veteran recovered from his work-related accident with some limitations but was permitted to return to his job thereafter. Following this incident, the Veteran was able to perform "small construction jobs" with his friend, including fence repairs and sidewalk construction. Upon the Veteran's return from service in 2003, he complained of "severe" neck pain which required treatment and caused noticeable functional impairment. Similarly, the Veteran's spouse provided a December 2020 lay statement which discusses the 1995 accident and the Veteran's return to work following his recovery. After his return from service in 2003, his neck pain had worsened and was productive of certain sleep impairment. Functional impairment was also reported, such that the Veteran "could hardly take off his shoes" or bend over without the assistance of injection therapies. Nonetheless, the Veteran remained limited in his ability to perform household tasks or play with his children. In contemplating the above, the Board concludes that the Veteran's current neck disability did not clearly and unmistakably preexist his 2003 period of active duty. The November 2018 VHA opinion is inconclusive on this point, whereas the August 2021 private opinion undertook a thorough review of the Veteran's medical history to conclude that the current disability was caused by the 2003 period of service. Although the latter opinion does not necessarily engage the specific regulatory language involved in such a finding, this does not irretrievably undermine the probative value of the opinion itself. Moreover, the August 2021 opinion is supported by the additional evidence of record, including two December 2020 statements which indicate that the Veteran's 1995 injury had healed prior to his 2003 active duty, and that his chronic pain instead onset during that period of service. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). On a February 2003 Report of Medical History, the Veteran did not indicate any existing cervical spine injuries, symptoms, or diagnoses; rather, the first mention of such in the available service treatment records (STRs) is found in June 2006. Accordingly, the weight of the evidence does not clearly and unmistakably show that the Veteran's current neck disability preexisted service. See also Crowe v. Brown, 7 Vet. App. 238 (1994). This appeal now proceeds on a direct basis. Here, the Board accepts the repeated lay testimony of record, as offered by the Veteran and others, as competent and credible evidence that his neck pain onset during his 2003 period of service due to the physical demands thereof. Layno, 6 Vet. App. at 469; Miller, 32 Vet. App. at 249. While STRs are silent for relevant symptoms or injuries during this time, there is no direct evidence which tends to undermine the Veteran's recollections on this point. Accordingly, the second element of direct service connection is also met for the neck appeal, and entitlement will be established upon the finding of a nexus between the Veteran's current disability and his in-service symptoms. Here, the November 2018 VHA examiner opined that the Veteran's current neck disabilities were less likely than not to have had their onset during service in 2003. By way of rationale, the examiner noted that minor trauma due to actions such as loading/unloading trucks, running, and firing rifles over less than a four-month span of time was unlikely to cause lasting degenerative changes in the spine. The examiner then cited to an academic article in support of their conclusion. However, the August 2021 private examiner noted that the above-referenced study was irrelevant to the etiology of the claimed neck condition, as the source evaluated only lower back pain and did not include study of military personnel: "In reality, service in the Army in known to be risk factor for the development of cervical spine disorders." The examiner then cited to several pertinent studies indicative of such a link. The private examiner also undertook an extensive review of the Veteran's medical records, and ultimately found that his cervical spine condition developed as a "direct result" of his 2003 service. In doing so, the examiner observed that incidents of cervical radiculopathy in servicemembers was nearly two times higher than that of non-servicemembers, and that incidence of trauma preceding such a diagnosis is "actually quite low" and instead often attributed to low impact activities such as sitting, walking, or standing. Thus, a major traumatic episode was not necessary for such a condition to develop, and the physical activities performed by the Veteran during service "would be expected" to cause cervical dysfunction. Compellingly, the private examiner also acknowledged that the first instance of neck diagnosis in the record occurred in 2006, several years following service discharge. However, the Veteran was diagnosed with moderate cervical spondylosis at that time: "This condition does not develop overnight, and [its presence in 2006] indicates that the condition had been present and progressing for at least several years." The August 2021 opinion is far more probative than the November 2018 VHA opinion on the question of etiology. The latter shows multiple deficiencies which cannot be overcome, to include an opinion absent any supporting rationale other than a study which is wholly irrelevant to the instant case. In contrast, the private examiner offered a detailed accounting of the Veteran's medical and military histories; directly contemplated the lay testimony of record; and cited to multiple, pertinent studies in support thereof. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). There is no indication that the private examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact in providing their nexus opinion; rather, their thorough review of the claims file directly supports the positive findings in this case. Importantly, no subsequent opinion offered any specific argument as to why the August 2021 opinion is not probative in this instance. Thus, it is found that the Veteran did not demonstrate a preexisting neck disability prior to his 2003 period of service. Instead, a nexus is found between the Veteran's current disability and this period of active duty. The preponderance of the evidence is for the claim, the benefit-of-the-doubt rule is applicable, and service connection for a neck disability is hereby granted on a direct basis. This finding is directly relevant to the remaining appeals, as the Veteran partly attributes his bilateral shoulder, psychiatric, and ED disorders to his now-service connected neck disability and the treatment thereof. The August 2021 private opinion is also instructive on this point. Compellingly, the examiner concluded that the Veteran's cervical spine condition "caused his bilateral shoulder disability, and the associated chronic pain syndrome led to the development of major depression. There is no question that [the Veteran's] ED is a direct result of his chronic pain syndrome and the side effects of the medications used to treat it and his depression." In offering these opinions, the private examiner again undertook an exhaustive review of all medical notations in the record as relevant to the claimed disorders. Id. Specifically, the examiner noted that the Veteran's STRs clearly document complaints of bilateral shoulder pain which were later diagnosed as glenohumeral and acromioclavicular osteoarthritis and degenerative joint disease. There was credible lay evidence of chronic symptoms, and medical literature is "clear that shoulder related pain in service members is often related to a spinal cause." In this specific case, objective imaging studies showed that the Veteran's neck and shoulder disabilities "share a common pathophysiology." Additionally, "the medical record is clear" that the Veteran suffers from a chronic pain syndrome associated with his neck and shoulder conditions, and that he developed depressive symptomatology shortly thereafter. The link between chronic pain and psychiatric disorders is well-understood in the medical community, as chronic pain impairs patients' perception of their general health, interferes with their daily activities, and causes social withdrawal and isolation. Lay statements in this case confirm such a progression in the Veteran. To treat his chronic pain, the Veteran utilizes a synthetic opioid and a muscle relaxant. Studies consistently show that patients with chronic pain, fatigue, and depression frequently suffer from ED. The Veteran's pain and psychiatric medications are also known to have significant suppressive effects on sexual behavior. Here, there are medical records showing such a relationship in this specific case. Again, the Board confirms that the prior VA opinions are inadequate in this instance; further, the November 2018 VHA opinion does not address the possible link between the Veteran's disabilities to any extent, instead noting that "it is beyond my expertise . . . to determine whether the current bilateral shoulder condition, acquired psychiatric disorder and erectile dysfunction were caused or aggravated by the cervical spine disability . . . ." The significant probative value of the August 2021 private opinion remains intact with respect to the shoulder, psychiatric, and ED appeals. Id. Briefly, the examiner accounted for the known intersection between the Veteran's disabilities in medical literature, as further demonstrated by his own treatment records. Compellingly, there are no competent opinions which tend to contradict the examiner's findings in this case, and the Board declines to remand for such potentially negative evidence at this time. Instead, a secondary nexus is found between the Veteran's neck, bilateral shoulder, psychiatric, and ED disabilities. The preponderance of the evidence weighs in favor of the appeals, and secondary service connection for bilateral shoulder, psychiatric, and ED disabilities is hereby granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.