Citation Nr: 21064542 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 14-07 114 DATE: October 20, 2021 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to a rating higher than 10 percent for lumbosacral strain with mild degenerative changes is remanded. REFERRED The Veteran submitted a claim of entitlement to service connection for a right shoulder disorder in September 2021. This issue is referred to the Agency of Original Jurisdiction for adjudication. FINDINGS OF FACT 1. There is probative medical evidence indicating that the Veteran's neck disability was caused by an injury that occurred during his active duty service. 2. There is probative medical evidence indicating that the Veteran has a left shoulder disability which was caused by his neck disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a neck disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3.310, 4.71a. 2. The criteria for entitlement to service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3.310, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to August 1982. This case comes to the Board of Veterans' Appeals (Board) on appeal from March 2013 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran attended a videoconference Board hearing before a Veterans Law Judge (VLJ), and the issues were remanded for further development in December 2017. In December 2019 correspondence, the Veteran's attorney requested another Board hearing via videoconference. In a February 2020 Board decision, the Board found that adequate rationale for the additional hearing had not been provided, and the appealed claims were denied. The Veteran appealed this decision to the Court of Appeals for Veterans Claims, and a November 2020 Joint Motion for Remand found that the Board had erred in denying the Veteran's request for a new hearing, and the February 2020 decision was vacated. The Veteran was then afforded a new Board videoconference hearing in July 2021. The Board also notes that the VLJ who held the March 2017 hearing has since retired, and this decision will be signed only by the VLJ who held the July 2021 hearing. Neck Disability The Veteran has requested service connection for a neck disability which had its onset during his active duty service. The Veteran testified in March 2017 and July 2021 that during service, he had a fall down a couple flights of stairs, which injured his back and neck, and caused him to be hospitalized. He reported that he had pain in his neck since that time, and continuing ever since. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). The Veteran's VA treatment records show that he has been diagnosed with cervical degenerative disc disease. His private treatment records include a September 2017 X-ray which found diffuse demineralization with mild degenerative changes in the cervical spine. The Veteran's service treatment records show that in October 1978, December 1978, and June 1982, he was treated for lower back pain due to heavy lifting, and in August 1982, he fell down stairs and had lower back pain. It is not indicated that the Veteran had neck problems at that time. While the Veteran's service treatment records do not specifically indicate that the Veteran incurred a neck injury in service, they do show that he had an accident where he fell down stairs, as he has testified, and the Veteran has credibly reported that he felt neck pain as well as lower back pain at that time, and that this pain has continued since that time. The Veteran has also submitted probative medical evidence which relates his current neck pain to his injury in service. Physician F.G. wrote that he had reviewed the Veteran's medical records, including his service treatment records, and that the Veteran's current cervical spine degenerative disc disease was more likely than not due to his traumatic fall during military service. The physician explained that this was due to a tensile loading and compressive loading injury affecting the elastic and Proteus glycan structures in the ligaments and intervertebral discs of the entire spine. A medical opinion has therefore been provided by a competent physician who reviewed the Veteran's medical records and provided a clear medical opinion that is consistent with the evidence of record, and which was accompanied by adequate rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board therefore finds that the Veteran has a current diagnosis of a neck disorder, and that competent and probative medical evidence relates it to an injury incurred in his active duty service. The claim is granted. Left Shoulder Disability The Veteran has also requested service connection for a left shoulder disability that either started in service or that was caused by his neck disorder. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran's VA treatment records show multiple complaints of pain in his left shoulder. His private treatment records include an October 2017 X-ray which found mild to moderative degenerative change of the acromioclavicular joint of the shoulder. The Veteran has also submitted probative medical evidence which relates his left shoulder disorder to his neck disorder. Physician F.G. discussed the Veteran's past medical history and injury in service, and he found that the Veteran's left shoulder pain was referred pain from the cervical spine to the shoulders, which should be considered to be combined symptomatology. He explained that this was based on the well-documented contemporary findings of cervical degenerative disc disease with neural foraminal and central canal stenosis. The Board therefore finds that there is competent and probative medical evidence indicating that the Veteran has a left shoulder disorder, which is secondary to his now service-connected neck disability. The claim is granted. REASONS FOR REMAND Lumbosacral Strain The Veteran contends that his lumbosacral strain has worsened over the past few years and warrants a rating higher than 10 percent. The Veteran has submitted a September 2021 letter from physician F.G. which stated that since he last evaluated the Veteran in 2017, his back disorder had progressively worsened. In December 2017, the Board remanded this issue so that the Veteran could be afforded a new VA examination. The Veteran did not attend this examination, but he has since testified that he was unable to attend because he lacked transportation, and that he would like another opportunity to attend a VA examination. The Board finds that this does constitute good cause, and the issue is remanded so that another examination can be scheduled for the Veteran. See 38 C.F.R. § 3.655(b). The matters are REMANDED for the following action: 1. Obtain all VA treatment records since January 2019. 2. Send to the Veteran and his attorney a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records pertaining to his lumbar spine disorder. If the Veteran provides completed release forms authorizing VA to obtain these records, then attempt to obtain them with at least one follow-up request if no reply is received. 3. Schedule the Veteran for an examination to evaluate the current severity of his lumbosacral strain with degenerative changes. The Board notes that the Veteran has difficulty with transportation, so this examination should be scheduled close to his home, or at a facility that can provide the Veteran with transportation to the examination. The examiner must be provided access to the Veteran's entire claims file and must specify in the report that the claims file has been reviewed. Perform all necessary tests to determine the current severity of the Veteran's lumbosacral strain and arthritis. The examiner should address whether the joints exhibit weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss. The examiner must evaluate the Veteran's lower extremities and determine whether he has radiculopathy in either leg, as well whether the Veteran has any other neurological symptoms caused by the service-connected lumbar disorder. For all range of motion findings, evaluate the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, to specifically include the degree of functional loss during flare-ups. The Board advises that it is inadequate for the examiner to state that he or she is unable to offer such an opinion because the examination was not performed during a flare up. Rather, the examiner must attempt to estimate the functional loss based on statements provided by the Veteran and available medical records. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.