Citation Nr: 21070965 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-37 705 DATE: November 29, 2021 ORDER Service connection for a cervical spine strain is denied. REMANDED The issue of service connection for left shoulder acromioclavicular joint osteoarthritis is remanded. FINDING OF FACT The Veteran's cervical spine strain was not caused by service. CONCLUSION OF LAW The criteria to establish service connection for a cervical spine strain have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps and U.S. Marine Corps Reserve from June 1997 to June 2001 and from February 2003 to May 2004, respectively. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Winston-Salem, North Carolina Regional Office (RO). In October 2020, the Board remanded the appeal to the RO for additional action. The RO did not substantially comply with the Board's remand directives as to the claim of service connection for left shoulder acromioclavicular joint osteoarthritis. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Cervical Spine Strain Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that her cervical spine strain resulted after a tailgate from a five-ton truck fell on her neck during service. A strain is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, presumptive service connection as to chronicity and continuity of symptomatology is not applicable. The claim will be denied on a theory of direct service connection. A service treatment record (STR) dated September 26, 2000 shows that a tailgate from a five-ton truck fell on the Veteran's neck. A cervical spine physical examination revealed the cervical spine collar intact and tenderness on the left lateral cervical spine. A cervical spine radiograph revealed no fracture. The service medical examiner did not diagnose a cervical spine disorder. In a service concussion surveillance form dated September 26, 2000, no cervical spine disorder was noted. On September 27, 2000, the Veteran underwent a concussion evaluation and the service medical examiner noted symptoms consistent with post-concussion syndrome, including neck pain. The service medical examiner did not diagnose a cervical spine disorder. The Veteran's residuals of a traumatic brain injury are service connected. In January 2001, the Veteran underwent a service department chiropractic evaluation. The service chiropractor noted no cervical spine abnormalities. In her May 2001 pre-separation medical history report, the Veteran answered "no" to the question of whether she then had, or once had recurrent back pain. In the Veteran's May 2001 pre-separation medical examination report, the service medical examiner noted no spine abnormalities. In her May 2001 service report of medical assessment, the Veteran answered that her health was "the same" as compared to the last medical physical examination and "no" to the question of whether she then had any other questions or concerns about her health. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe and largely are based on the fact-providers subjective account. In this respect, they are akin to official records, and contemporaneously based medical records which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). In a July 2009 VA treatment record, the Veteran did not report any musculoskeletal symptoms. An October 2009 VA treatment record noted that the Veteran's neck pain was not elicited by motion. During the April 2017 VA examination, the Veteran reported neck pain occurring six times per year lasting two to three weeks at a time. A cervical spine radiograph revealed mild reversal of cervical lordosis, maintained disc spaces, normally aligned facet joints, unremarkable lateral masses, unremarkable odontoid process, unremarkable lung apices, and no evidence of a fracture or prevertebral edema. The Veteran was diagnosed with a cervical spine strain. The examiner opined that the Veteran's cervical spine strain was not caused by the in-service trauma because STRs did not show chronicity of a cervical spine disorder, the Veteran denied spine symptoms at separation, and post-service medical records did not show chronicity of a cervical spine disorder. The VA negative etiology opinion is inadequate and of low probative value because the examiner did not consider the Veteran's competent statement of neck pain. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that a lay person is competent to identify the presence of disability or symptoms of disability subject to lay observation). The May 2021 VA examiner diagnosed the Veteran with a cervical spine strain. The examiner opined that the Veteran's cervical spine strain was not caused by the in-service trauma because the Veteran's neck pain resolved at separation as evidenced by the January 2001 service chiropractor noting no cervical spine abnormalities, the Veteran denying back pain at service separation, and the service medical examiner noting no cervical spine abnormalities at service separation. Additionally, the examiner noted that the April 2017 VA cervical spine radiograph revealed no signs of acute injury or chronic residuals of an injury. The May 2021 VA addendum opinion is highly probative because the examiner had an accurate and complete understanding of the Veteran's medical history and provided a medical conclusion with sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A preponderance of the evidence is against a finding that the Veteran's cervical spine strain was caused by service. STRs contemporaneous to the Veteran's in-service trauma did not show any cervical spine abnormalities. The September 2000 service medical examiner noted the Veteran's neck pain as a symptom consistent with post-concussion syndrome. As noted, the Veteran's residuals of a traumatic brain injury are service connected. The January 2001 service chiropractor noted no cervical spine abnormalities, the Veteran denied back pain at service separation, and the service medical examiner noted no cervical spine abnormalities at service separation. The May 2021 VA examiner opined that the Veteran's cervical spine strain was not caused by service. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted, and the claim is denied. REASONS FOR REMAND The remaining matter is remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The May 2021 VA examiner's opinion in part is self-contradictory. While the examiner provided a negative etiology opinion as to presumptive service connection under § 3.309(a) and direct service connection, he also stated that the Veteran "clearly continues to have pain in her left shoulder which shows a continuation from her original injury in 2000" and then indicated "some caveats" and "some concerns" due to the Veteran's "preconceived endpoints" for range of motion testing. The VA medical opinion is not clear, and therefore inadequate, as to presumptive service connection under § 3.309(a) and direct service connection. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that an adequate medical examination and opinion must provide sufficient detail for the Board to make a fully informed evaluation of whether service connection is warranted); Stegall, 11 Vet. App. at 268. Put simply, the question in this matter is whether the Veteran HAS, or DOES NOT HAVE, a left shoulder disability that is the result of the in-service incident. The examiner's opinion suggests that the Veteran does have such a disorder while at the same time suggesting that he does not believe her factual account. THE REMAND DIRECTIVES FOLLOW. 2. Return the file to the VA examiner who conducted the May 2021 VA examination for a file review and an addendum opinion. If the examiner is not available, have the file reviewed by a similarly qualified examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide the following opinions: Is the Veteran's left shoulder pain a medically demonstrated continuation since service? Is the Veteran's account of left shoulder pain medically consistent with the development of her left shoulder acromioclavicular joint osteoarthritis? Put alternatively, given the factors that the examiner reported in May 2021 (i.e., the lack of continuing complaints, the fact that the Veteran appeared to have "preconceived endpoints" during testing, and reported going to the gym, etc.) DOES OR DOES NOT the Veteran have a left shoulder disorder related to service? Was the Veteran's left shoulder acromioclavicular joint osteoarthritis caused by the tailgate from a five-ton truck falling on her left shoulder during service? THE EXAMINER IS ADVISED THAT A NEGATIVE ETIOLOGY OPINION SOLELY BASED ON THE LACK OF DOCUMENTED LEFT SHOULDER TREATMENT AFTER SERVICE SEPARATION WILL RENDER THE OPINION INADEQUATE Although the examiner must review the VBMS file, his or her attention is drawn to the following: A service treatment record dated September 26, 2000 shows that a tailgate from a five-ton truck fell on the Veteran's left shoulder. The Veteran reported left shoulder pain, numbness, and was diagnosed with a left shoulder contusion. A service treatment record dated September 27, 2000 reflects the Veteran's report of left shoulder pain, soreness, popping, and limited range of motion. A left shoulder physical examination revealed tenderness to palpation, limited range of motion, and decreased strength. The Veteran was diagnosed with a resolving left shoulder contusion. In her May 2001 pre-separation medical history report, the Veteran answered "no" to the question of whether she then had, or once had a painful or trick shoulder. In the Veteran's May 2001 pre-separation medical examination report, the service medical examiner noted no upper extremity abnormalities. In her May 2001 service report of medical assessment, the Veteran answered that her health was "the same" compared to the last medical physical examination and "no" to the question of whether she then had any other questions or concerns about her health. In a July 2009 VA treatment record, the Veteran did not report any musculoskeletal symptoms. During the April 2017 VA examination, the Veteran reported left shoulder pain since service separation. A left shoulder radiograph revealed no significant abnormalities. The Veteran was diagnosed with left shoulder rotator cuff tendonitis. During the May 2021 VA examination, the Veteran reported left shoulder pain since service separation. A left shoulder radiograph revealed mild degenerative joint disease. The Veteran was diagnosed with left shoulder acromioclavicular joint osteoarthritis. 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.