Citation Nr: 21072738 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-17 131A DATE: December 6, 2021 ORDER Reopening of a previously denied claim of service connection for left shoulder disability is granted. Service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. In a December 2000 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for left shoulder disability based on findings of no current disability. 2. Evidence submitted since December 2000 relates to an unestablished fact necessary to substantiate the claim, and has not been previously considered. 3. A left shoulder disability, manifested by pain causing functional impairment, had its onset in service. CONCLUSIONS OF LAW 1. The December 2000 rating decision regarding the claim for service connection for left shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence submitted since December 2000 is new and material; and the claim for service connection for left shoulder disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection of a left shoulder disability, manifested by pain causing functional impairment, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1993 to June 2000, and from September 2001 to June 2002. He timely appealed these matters from a November 2015 rating decision. In June 2021, the Veteran testified during a virtual hearing before the undersigned; a transcript of the hearing is associated with the claims file. All available records identified by the Veteran as relating to claims decided below have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Regarding reopening of a previously denied claim, the Veteran is not entitled to examination prior to submission of new and material evidence. Regarding service connection claims, examination reports and opinions are thorough and adequate for the Board to render the following decision in the Veteran's appeal. 38 U.S.C. § 5103A(a)(2). New and Material Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The AOJ originally denied service connection for a left shoulder disability in December 2000 based on the absence of evidence showing chronic disability. Since that time, VA and private treatment records document diagnoses of left shoulder degenerative changes as well as complaints of pain with functional impairment. This new evidence directly addresses the basis of the prior denial, and reopening was appropriate. Service Connection 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. In order 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). Pain alone, without any functional impairment or underlying diagnosis, is not a service connectable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed.Cir. 2001). However, when the pain causes impaired function, there is a current disability for VA purposes. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, the Veteran asserts that his left shoulder disability is due to an in-service accident and injury, or is, in the alternative, secondary to his service-connected recurrent muscle strain of left side of neck. Service treatment records include a report of medical assessment for purposes of separation in June 2000, in which the examiner noted "whiplash injury to neck 1999, essentially resolved." Clinical evidence of the Veteran's upper extremities and spine were normal at his initial separation examination in March 2000. At that time the Veteran reportedly intended to seek VA benefits for conditions involving his hearing and neck and right wrist. Private records dating from when the Veteran was in his initial period of active duty reveal that, prior to his initial separation in June 2000, the Veteran reported having some left shoulder and neck pain in May 2000. He reported involvement in a motor vehicle accident in 1999, where he was hit from the left side and jerked his neck. He had soreness for about a week to ten days and seemed to get over it pretty well. However, the Veteran noticed a pain when driving; the pain was in his left shoulder anteriorly, as well as left trapezius muscle and up the sternocleidomastoid on left side. Examination of left shoulder in May 2000 revealed good ranges of motion and a little bit of crepitus. The assessment was chronic neck strain pattern. The Veteran was given medication for treatment of shoulder and neck pain. X-rays of the Veteran's neck were recommended, as well as follow-up on left shoulder. A July 2000 VA examiner noted reports of aching pain in the top of the left shoulder after a long drive; it resolved with rest, but recurred the next day after a short time, and has continued to recur when driving. X-rays in July 2000 revealed a normal left shoulder, but a VA examiner in August 2000 diagnosed left shoulder pain secondary to prior injury. No functional impairment was clearly identified. During the Veteran's second period of active duty, he reported shoulder pain of one week's duration in April 2002. He had shoulder pain with wearing of bullet-proof vest. He reported no history of shoulder pain or trauma. The pain was on left side. Following examination, the assessment was muscle strain probably overuse. Medications were prescribed. On a May 2002 report of medical assessment for separation, the examiner noted occasional neck and upper back with wearing bullet-proof vest. At that time the Veteran reportedly intended to seek VA benefits for conditions involving his right wrist and neck and shoulder, and for ringing in ears. VA records, dated in April 2004, show intermittent problems with the left side of neck and left shoulder, particularly with prolonged driving. Following examination, the impression was neck/left shoulder/right wrist strain, asymptomatic at present; no treatment needed. X-rays revealed minimal degenerative changes of acromioclavicular joint of left shoulder in August 2012. VA records show an interval history of chronic pain to neck and left shoulder in June 2015. During an October 2015 VA examination, the Veteran reported that driving increased the pain going into left shoulder. He no longer could do some weight training involving his left shoulder. Sensory examination of shoulder area was normal. The Veteran underwent physical therapy of left shoulder in February 2016, for purposes of improving ranges of motion and functional coordination. A March 2017 VA examination report reveals a diagnosis of degenerative arthritis of left shoulder. The medical history reveals that the Veteran injured his left shoulder approximately in 1999 in a motor vehicle accident. He used to have intermittent pain, particularly with prolonged periods of driving. The pain had become more constant in the last four years. Examination revealed that ranges of motion of left shoulder were decreased, in comparison to ranges of motion of right shoulder. The examiner noted that the Veteran would have difficulty doing physical labor that required lifting and pushing and pulling. Following examination, the March 2017 examiner opined that the Veteran's left shoulder disability was less likely than not incurred in or caused by the in-service motor vehicle accident. In support of the opinion, the examiner reasoned that there is no evidence that the Veteran sustained a shoulder injury in the motor vehicle accident; and that it would not be uncommon for minimal degenerative changes in 2012 for someone with risk factors such as labor-type occupation and age. The March 2017 examiner also opined that the Veteran's left shoulder disability was less likely than not proximately due to or the result of the Veteran's service-connected recurrent muscle strain of left side of neck. In support of the opinion, the examiner explained that no supportive medical literature was found to say that whiplash or recurrent muscle strain of left neck resulted in degenerative changes of shoulder. Lastly, the March 2017 examiner opined that the Veteran's left shoulder disability was not at least as likely as not aggravated beyond its natural progression by service-connected recurrent muscle strain of left side of neck. The Veteran testified in June 2021 that he first noticed problems with his left shoulder when he separated from active duty the first time. The evidence reflects several years of left shoulder pain and functional loss due to pain. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. And the Veteran, even as a layman, is competent to proclaim that he suffered intermittent left shoulder pain after service. This is further corroborated by private records showing left shoulder pain both during and following active service. The Board finds that the Veteran primarily has been consistent throughout the appeal. He consistently reported intermittent left shoulder pain following the motor vehicle accident in 1999. The evidence reflects intermittent left shoulder pain, particularly when driving. Given the persistence of the complaints and reports associating such with activity, a current disability is found. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 268 (2005). He presented a history of onset of left shoulder pain, shortly after the 1999 motor vehicle accident. Further, the August 2000 VA examination report tends to corroborate the Veteran's report of left shoulder pain secondary to prior injury. In this case, there are conflicting medical opinions. The March 2017 examiner opined that a left shoulder disability was less likely than not incurred in or caused by the in-service motor vehicle accident because the examiner found no evidence that the Veteran sustained a shoulder injury in the motor vehicle accident. The March 2017 examiner's opinion is less persuasive than the Veteran's credible lay statements of recurrent left shoulder symptomatology. The Board finds the August 2000 VA examiner's diagnosis of left shoulder pain secondary to prior injury as probative and supported by the evidence of record. The overall evidence supports a finding that intermittent left shoulder pain had its onset in active service Given the nature of the disability, the Veteran's credible lay statements, private records documenting left shoulder pain in active service, and the August 2000 VA examination report, the Board finds that the Veteran's disability manifested by left shoulder pain with functional impairment is the result of disease or injury incurred in service. See Hodges v. West, 13 Vet. App. 287, as amended (2000). Service connection for a disability manifested by left shoulder pain with functional impairment is warranted. REASONS FOR REMAND Headaches In July 2021, the Veteran testified that when his neck bothered him, headaches usually came shortly afterward. He testified that headaches have been occurring since active service, and he sought treatment by a neurologist. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The evidence of record includes a monthly headache log from January 2016 to March 2021. Service treatment records show that the Veteran was in a motor vehicle accident in January 1999. At the time he reported mild left-sided neck stiffness and biparental headaches. Examination revealed that cranial nerves were intact. No VA examiner has addressed whether the Veteran's reports of longstanding headaches are a chronic condition, a symptom of another disease, or whether it is at least as likely as not caused or aggravated by service. Here, a reasonable basis for a possible nexus is raised for secondary service connection, and examination or medical review is required; determinations of proximate cause and degree of aggravation, if possible, are especially important. McLendon v. Nicholson, 20 Vet. App. 79, 83-84 (2006). The matter is REMANDED for the following action: 1. Obtain updated VA treatment records for the period from November 2021 to the present. 2. Schedule a VA examination or medical review, as appropriate, to determine the nature and etiology of the Veteran's headaches. The claims file must be available and reviewed in this regard. Specifically, the examiner should opine as to whether currently diagnosed headaches are at least as likely as not (50 percent probability or greater) caused or aggravated by service, to include as secondary to service-connected recurrent muscle strain of left side of neck, or any other service-connected disability. A full and complete rationale for all opinions expressed is required. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Then, readjudicate the claim on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and, after appropriate time for response, return the appeal to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.