Citation Nr: A21020532 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200302-66112 DATE: December 27, 2021 REMANDED 1. Entitlement to service connection for left shoulder degenerative joint disease (DJD), to include as secondary to service-connected cervical strain and spondylosis with intervertebral disc syndrome, is remanded. 2. Entitlement to service connection for right shoulder DJD, to include as secondary to service-connected cervical strain and spondylosis with intervertebral disc syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1957 to March 1960. The Veteran originally filed a claim for service connection for bilateral shoulder DJD in August 2019. The Board issued a decision in July 2020 denying the claims. The matter was appealed to the U.S. Court of Appeals for Veterans Claims (Court). Thereafter, the Veteran and the Secretary of VA (parties) agreed to a Joint Motion for Remand (JMR), which was subsequently ordered by the Court in August 2021. As discussed below, the Board finds that additional development is warranted, and the matters are remanded. 1. Entitlement to service connection for left shoulder DJD is remanded. 2. Entitlement to service connection for right shoulder DJD is remanded. The parties to the JMR agreed that the Board clearly erred when it failed to ensure VA satisfied its duty to assist. In coming to this conclusion, the parties stated the Board relied on September 2019 VA examination opinions to deny service connection on a secondary basis. However, the parties pointed out that while the September 2019 VA examiner provided a rationale as to why the Veteran's bilateral shoulder DJD was less likely than not proximately due to or the result of the service-connected cervical strain and spondylosis, the examiner did not provide opinions as to whether the left shoulder DJD and right shoulder DJD were aggravated by the service-connected cervical strain and spondylosis. The parties pointed to El-Amin v. Shinseki in determining the opinions were inadequate because they failed to address aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 141 (2013) (finding inadequate a medical opinion as to secondary service connection because it addressed causation but not aggravation). The parties also pointed out that, although the December 2019 VA examiner acknowledged the Veteran was awarded the Parachutist Badge, the examiner did not address the Veteran's lay statements as to injuring his shoulders during service. The Board finds there was a duty to assist error in obtaining secondary medical opinions in connection with the claims for service connection for bilateral shoulder DJD, and a remand is warranted for an addendum medical opinion. The matters are REMANDED for the following action: Refer the Veteran's file to an appropriate examiner for an addendum opinion to the September 2019 and December 2019 VA examinations. The examiner should review the Veteran's claims file. The agency of original jurisdiction is asked to provide the examiner a copy of the below facts. If the examiner finds that an in-person examination is warranted, then schedule an examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: The Veteran served on active duty from March 1957 to March 1960. His DD Form 214 shows that he received the Parachutist Badge. A July 1959 service treatment record shows the Veteran sustained a cervical strain while diving, where he dove into a swimming pool and wrenched his neck, which was painful and had become stiff. The examiner documented there was pain radiating to the right shoulder and was aggravated by extension and lateral flexion of the neck. Physical examination was "essentially negative except for that relating to the neck." Motor function of the right arm was normal. See VBMS entry with document type, "STR Medical," receipt date 10/14/1971, p. 23. A January 1960 Report of Medical Examination completed at service discharge shows that clinical evaluation of the upper extremities was normal. See VBMS entry with document type, "STR Medical," receipt date 10/14/1971, p. 7 (item 35). A January 1960 Report of Medical History that the Veteran completed at service discharge shows that he denied a history of "Painful or 'trick'" shoulder." On page 2 of the form, when asked if he had ever had an illness or injury other than those already noted, he documented a fractured skull. See VBMS entry with document type, "STR Medical," receipt date 10/14/1971, pp. 47-48 (items 20, third column & 34). The Veteran is service connected for cervical strain and spondylosis with intervertebral disc syndrome. The Veteran alleges the bilateral shoulder arthritic disabilities were (1) caused by or (2) aggravated by the service-connected cervical spine disability. Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Alternatively, the Veteran also alleges that he injured his shoulders during a number of parachute accidents. As to this fact, the examiner is reminded that the Veteran denied a history of "Painful or 'trick'" shoulder" at service discharge in January 1960 and reported an injury that did not involve his shoulders in that document. The Veteran also did not report old shoulder injuries when he sought treatment for bilateral shoulder pain in 2013. Instead, in May 2013, he reported a more recent onset of shoulder pain of about 18 months. The 2013 treatment record is described in more detail below. A September 1979 private treatment record shows that the Veteran had awoken earlier that month with severe pain in the neck that progressed throughout the day with pain radiating down the right shoulder, right upper extremity, and numbness in the right long finger. Range of motion of the upper extremities was normal. Motor power testing showed definite weakness of the right triceps compared to the left side. He was diagnosed with acute disc rupture at C6-7 on the right side. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 05/29/1998, pp. 2-4. A May 2013 private treatment record shows that the Veteran reported bilateral shoulder pain and weakness. The examiner wrote, "[T]he patient's problem started about 18 months ago. H[ad] a prolonged surgery on his head and neck[,] at which time[,] they positioned his arms out to the side. After surgery, he noticed pain and weakness in both shoulders. Over the last year he's had increased pain in [b]oth shoulders with decreased strength and function." The examiner noted that x-rays from a medical center showed significant "acromial spurring and type reconfiguration. There is sclerosis any irregularity to the greater tuberosity indicating chronic impingement. The glenohumeral joints are relatively normal." Physical examination showed bilateral signs of impingement including Neer and Hawkins signs and a negative drop arm test. The diagnoses were shoulder impinging syndrome, acute, and osteoarthrosis of the shoulder, acute. The examiner stated that the Veteran's symptoms and physical exam were consistent with impingement and rotator cuff tendinitis of both shoulders. The examiner wrote, "He has significant weakness and it's possible he may have partial thickness or small full thickness tears as well." The examiner gave the Veteran a subacromial cortisone injection on the left side, as the Veteran reported it was more symptomatic than the right, and recommended physical therapy. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 08/27/2019, pp. 2-3. The Veteran was seen again in June 2013, and had a cortisone injection to his right shoulder because of how well the injection worked in the left shoulder. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 08/27/2019, pp. 4-5. A June 2019 private treatment record shows that the Veteran complained of neck stiffness worsened with range of motion and crepitus with range of motion. The examiner noted that the Veteran had "[r]esolved right radicular arm pain." The examiner also documented that the Veteran was "noticing left shoulder pain," which was worse with range of motion. There was no radicular component with the left shoulder. Physical examination revealed deceased range of motion. The examiner diagnosed chronic left shoulder pain. The examiner wrote that the left shoulder symptoms were most consistent with subacromial bursitis versus rotator cuff tendinopathy. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 08/27/2019, pp. 9-12. In September 2019, the Veteran underwent a VA examination for shoulder and arm conditions. At the examination, the Veteran reported that his bilateral shoulder condition began in September 1958. He stated the condition began as a paratrooper and, during the course of jumping, his landing was so bad, he hurt his shoulders. See VBMS entry with document type, "C&P Exam," receipt date 10/07/2019, with "#1" in the subject field, p. 4. September 2019 x-rays of the right and left shoulders have the same impression of minimal osteoarthritis of the acromioclavicular joint and degenerative changes in the greater tuberosity of the humerus. See VBMS entry with document type, "C&P Exam," receipt date 10/07/2019, with "#5 Diagnostic" in the subject field, p. 3. In October 2019, the examiner who performed the September 2019 physical examination acknowledged the in-service neck injury documented in the service treatment records. The examiner concluded that the Veteran's left and right shoulders were less likely than not proximately due to or the result of the Veteran's cervical spine disability. See VBMS entries with document type, "C&P Exam," receipt date 10/07/2019, with "#3" & "#6" in the subject field (the left and right shoulders were addressed separately). In December 2019, the examiner who performed the September 2019 physical examination provided an addendum medical opinion. The examiner acknowledged the fact that the Veteran had received a parachutist badge and that the Veteran incurred a neck strain during service, at which time, he reported radiating pain in the right shoulder. The examiner noted there was no direct bilateral shoulder injury reported and that the service treatment records were silent for any medical complaints, issues, or events of treatment regarding the bilateral shoulder. The examiner then noted that interim medical records from 1981 to 2013 were also silent for any chronic bilateral shoulder pain, which covered 52 years after service discharge. The examiner found there was limited evidence to show a chronic bilateral shoulder condition in relation to service. The examiner found that the Veteran's current shoulder diagnosis was likely an age-related degenerative disability. The examiner concluded, "Therefore, in my opinion, the Veteran's bilateral shoulder condition is less likely than not [] incurred in and/or caused by the bilateral shoulder condition due to parachute actions during service." See VBMS entry with document type, "C&P Exam," receipt date 12/13/2019. In determining that the left and right shoulder disabilities were not due to the cervical strain and spondylosis with intervertebral disc syndrome, the examiner did not address whether the disabilities were aggravated by the service-connected disability. To reiterate, aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. Following a review of the evidence, the examiner is asked to answer the following questions: 1. Is it at least as likely as not (50 percent or greater probability) that the left shoulder DJD is related to the Veteran's period of active duty from March 1957 to March 1960? Please state upon what facts, medical principles, and/or medical literature the opinion is based. Please specifically address the Veteran's lay statements that he injured his shoulders during a number of parachute accidents in service. 2. Is it at least as likely as not (50 percent or greater probability) that the right shoulder DJD is related to the Veteran's period of active duty from March 1957 to March 1960? Please state upon what facts, medical principles, and/or medical literature the opinion is based. Please specifically address the Veteran's lay statements including his statements that he injured his shoulders during a number of parachute accidents in-service. 3. If the examiner finds that left shoulder DJD is not related to service, the examiner is asked if it is it at least as likely as not (50 percent or greater probability) that left shoulder DJD was caused by the service-connected cervical strain and spondylosis with intervertebral disc syndrome? Please state upon what facts, medical principles, and/or medical literature the opinion is based. 4. If the examiner finds that right shoulder DJD is not related to service, the examiner is asked if it is it at least as likely as not (50 percent or greater probability) that right shoulder DJD was caused by the service-connected cervical strain and spondylosis with intervertebral disc syndrome? Please state upon what facts, medical principles, and/or medical literature the opinion is based. 5. If the examiner finds that left shoulder DJD is not caused by the service-connected cervical strain with spondylosis, is it at least as likely as not (50 percent or greater probability) that left shoulder DJD was aggravated by the service-connected cervical strain and spondylosis with intervertebral disc syndrome? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature the opinion is based. 6. If the examiner finds that right shoulder DJD is not caused by the service-connected cervical strain with spondylosis, is it at least as likely as not (50 percent or greater probability) that right shoulder DJD was aggravated by the service-connected cervical strain and spondylosis with intervertebral disc syndrome? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts, medical principles, and/or medical literature the opinion is based. 7. If the examiner finds that the service-connected cervical strain and spondylosis aggravated the left shoulder DJD, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left shoulder disability. If the examiner is unable to establish a baseline for the left shoulder disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate. 8. If the examiner finds that the service-connected cervical strain and spondylosis aggravated the right shoulder DJD, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right shoulder disability. If the examiner is unable to establish a baseline for the right shoulder disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, she or he should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether she or he has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Patton 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.