Citation Nr: 21072095 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 12-30 701 DATE: December 2, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT The Veteran's right shoulder disability did not begin during active-duty service, nor is it otherwise related to an in-service injury, event, or disease, including exposure to water contaminants at Camp Lejeune. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability, to include as due to contaminated water exposure at Camp Lejeune, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from January 1969 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The matter has significant procedural history. It was initially denied by the Board in a March 2015 decision. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand (JMPR), the Court in March 2016 vacated and remanded the matter for consideration of private medical records. The matter was remanded by the Board in August 2016 and April 2017 and was again denied in November 2018. The Veteran appealed this denial to the Court. Based on a November 2019 Joint Motion for Remand (JMR), the matter was remanded in order that the Veteran's Social Security Administration (SSA) records be associated with the claims file. The Board remanded the matter in May 2020 to obtain the records. In April 2021, the Board again remanded the matter for additional development. VA personnel records were associated with the file and the Veteran was sent a Subsequent Development Letter in April 2021. Relevant VA examinations were completed in August 2021, and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran..."). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran who served at Camp Lejeune for at least 30 during the period from August 1953 to December 1987 is presumed to have been exposed to the contaminants in the water supply, unless there is affirmative evidence to the contrary. Service at Camp Lejeune means any service within the borders of the entirety of the United States Marine Corps Base Camp Lejeune and Marine Corps Air Station New River, North Carolina. 38 C.F.R. § 3.307(a)(7). The Veteran's personnel records confirm that he served at Camp Lejeune. Exposure to contaminated water is established. Although the Veteran's right shoulder disability is not listed among the presumptive diseases associated with contaminated water exposure, the Veteran may still establish service connection on a direct basis, if the relevant requirements are met. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran contends that he is entitled to service connection for a right shoulder disability, to include as due to exposure to contaminated water. The Veteran's service treatment records are silent as to any injury or treatment related to his shoulder. Records suggest that the Veteran was in a motor vehicle accident (MVA) in the 1970's during which he sustained a head injury. However, neither service treatment records nor personnel records contain any relevant information about the accident. The Veteran's private treatment records report right shoulder pain from post-service work-related incidents. Records from August 2008 show right shoulder pain after lifting heavy objects at work. Records from December 2010 identify right shoulder pain beginning 3 months prior, with the apparent precipitating event identified as lifting and pulling a pallet jack. Private treatment records also show that the Veteran had a neck injury around February 2012 which had associated right arm pain. The Veteran was seeking worker's compensation for this injury. In an August 2021 VA shoulder and arm examination, the Veteran was diagnosed with right-sided rotator cuff tendonitis. He was also found to have a neck problem, described as cervical IVDS, with numbness in the right arm. During the examination, the Veteran reported that his injury was onset in 1977 while working in a factory. The examiner opined that the Veteran's shoulder injury was less likely than not incurred in or caused by service. In rendering this opinion, the examiner considered the Veteran's reported 1970 MVA, which had resulted in a head injury and laceration but no whiplash. The examiner found that the separation examination was negative for shoulder problems and that the Veteran had worked in factories and as a truck driver for 32 years. He found that the Veteran had a workman's compensation injury with pain and numbness in his right arm related to cervical disc disease nearly 30 years after military discharge, and that he had equal shoulder joint problems developing over a 35-year career in manual labor. The examiner concluded that the injuries did not seem out of proportion to natural development and that the Veteran had not reported seeking medical care while in-service for shoulder problems. The examiner provided additional rationale in a later section of the opinion, noting that the Veteran did not seek medical care or report injury on the separation medical evaluation. Additionally, the neck and shoulder problems did not become apparent until 2012, which was 36 years post-military service, with factory and truck driving/unloading in the interim period. He concluded that the injuries were not beyond natural progression with the Veteran's manual work and were temporally disconnected to service. In the August 2021 medical opinion addressing CLCW exposure, the examiner found that it was less likely than not that the Veteran's right shoulder disability was incurred in or caused by the exposure. Although the examiner incorrectly noted that the timeframe when the Veteran served at Camp Lejeune was unknown, he considered the possibility of exposure regardless, rendering this error harmless. The examiner noted review of the Veteran's diagnosed condition, available medical records, medical history, research literature on right shoulder disability, toxicological data on Trichloroethylene (TCE), Tetrachloroethylene or Perchloroethylene (PCE), Benzene, and Vinyl Chloride, information regarding the modeled water contamination levels at Camp Lejeune, and studies on CLCW veterans. He named numerous consulted references and laid out the Veteran's medical risk factors. The examiner identified the Veteran's September 2010 complaint of a right shoulder injury during work, as well as complaints of cervical spine pain with radiculopathy causing right shoulder pain. He indicated that neck problems and their anatomical disruption are known to cause right shoulder symptoms. The examiner further found that there are no scientific studies documenting an association between CLCW exposure and a causal relationship to cervical spinal stenosis with radiculopathy (causing right shoulder pain). He noted that the record documented a strain of the right shoulder as well as neck pathology that would produce right shoulder symptoms. He pointed to several studies that did not document an elevated incidence, elevated hazard risk ratios or causal associations between a right shoulder disability, identified as cervical spinal stenosis with radiculopathy causing right shoulder pain, and CLCW exposure. He noted that the Veteran's conditions had specific musculoskeletal etiologies indicating mechanical factors. Such were found to be much more likely causally related to his right shoulder disability than CLCW exposure. In this opinion, it appears that the examiner identified the shoulder disability as radiculopathy secondary to cervical spinal stenosis rather than as the diagnosed rotator cuff disability. However, the examiner also identified the Veteran's work-related shoulder strain identified in his private treatment records in rendering his opinion. The examiner did not discuss the reported shoulder injury from 1977. However, per the Veteran's own report, this injury occurred after service while he was working in a factory. As such, an additional remand for the examiner to specifically consider CLCW exposure regarding this injury would be fruitless. In an October 2021 Informal Hearing Presentation (IHP), the Veteran's representative argued that the above examinations were inadequate, arguing that they failed to provide an adequate rationale that dealt with aggravation and causation as independent concepts and failed to support conclusions with analysis. However, the issue of aggravation has not been raised here as there is no indication that the Veteran had a pre-existing shoulder injury, and doctors have been very clear in rejecting the allegations of in-service injury based on medical evidence. In other words, there is no credible evidence of injury in service to be aggravated by the post-service injuries. Additionally, the examiners have provided sufficient rationales for their conclusions. Upon consideration of the evidence, the Veteran's right shoulder disability has been attributed to his long career in manual labor rather than service or CLCW. While a Veteran is generally considered competent to describe events from service, the Veteran has not provided any specific details regarding an in-service injury or incident that caused his current right shoulder disability. Rather, general allegations have been made regarding a MVA and the possibility of a causal relationship between the injury and CLCW. The VA examiner has considered both possible etiologies in providing negative opinions. Otherwise, the Veteran's identified shoulder injuries have specific post-service work related etiologies. Therefore, the preponderance of the evidence shows nonservice-connected causes for the right shoulder disability. Accordingly, service connection is not warranted. REASONS FOR REMAND Entitlement to service connection for a back disability is remanded. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Regarding the issue of entitlement to service connection for a back disability, the Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the April 2021 remand directives. As such, another remand is warranted. In the April 2021 remand instructions, the examiner was asked to consider whether there was clear and unmistakable evidence that the Veteran had a back condition preexisting service, and if so, whether there was clear and unmistakable evidence that such did not undergo an increase in underlying pathology during service. If there was an increase in severity, the examiner was asked to offer an opinion as to whether such was clearly and unmistakably due to the natural progress of the disease. Here, the Veteran's January 1969 enlistment examination notes that he had kyphosis, which was identified as "NCD" or not currently disqualifying/not considered disabling. However, the examiner based his opinion on an incorrect statement of facts in the August 2021 examination. He stated, "scoliosis noted on Service Separation, I did not see on enlistment." His opinion was based on an understanding that scoliosis was noted on the separation examination, rather than kyphosis on the enlistment examination. Accordingly, remand is necessary for the examiner to provide an opinion based on consideration of the correct facts. Additionally, during the August 2021 VA back examination, the Veteran reported that he had received an injection for his back in 1971 while on leave. Although the back disability was addressed in the August 2021 VA examination, the examiner provided a cursory discussion of this in-service treatment. He only noted that the Veteran received a single treatment and that he did not report or seek medical care for persistent back problems. On remand, the examiner should specifically opine as to whether an injury for which the Veteran received such treatment while in service is at least as likely as not the cause of his current back disability. The matters are REMANDED for the following action: 1. Obtain and addendum opinion from the doctor who opined in August 2021; the claims file must be reviewed in conjunction with this. The need for an additional in-person examination is left to the discretion of the medical professional offering the addendum opinion. The clinician must opine as to whether the Veteran's current back disability is it is at least as likely as not (50 percent probability or higher) caused by injury related to reported in-service single incident of back treatment, described as receiving a steroid shot in 1971. The clinician must opine as to whether it is clear and unmistakable that the Veteran had a back disability that preexisted service. In rendering this opinion, the examiner must consider that kyphosis was noted on the Veteran's entrance examination, though characterized as "NCD." If a preexisting back disability is identified, the clinician must opine as to whether it was clearly and unmistakably NOT aggravated beyond natural progression by active service. 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.