Citation Nr: 21005869 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-32 129 DATE: February 2, 2021 ORDER Entitlement to service connection for torn left rotator cuff, to include as secondary to service-connected left knee disability, is granted. REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether the weakness of the Veteran’s service-connected left knee disability caused him to fall off of his motorcycle in June 2013 and injure his left shoulder. His current torn left rotator cuff is the resultant injury of the fall. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, the Veteran’s left shoulder disability is secondary to a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to August 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The matters are currently under the jurisdiction of the Roanoke, Virginia RO. The Veteran was afforded a Travel Board hearing in October 2017 before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran’s electronic claims folder. Entitlement to service connection for torn left rotator cuff, to include as secondary to service-connected left knee disability The Veteran does not contend and the evidence does not suggest that his left shoulder disability arose in or is related to service. Thus, service connection on a direct basis is not warranted. Rather, the Veteran contends that his left shoulder disability was indirectly caused by his service-connected left knee disability. Specifically, he contends that his left knee disability caused symptoms of weakness and imbalance, which in turn caused him to have a “motorcycle incident” where he injured his left shoulder. In other words, he is arguing that “but for” his left knee disability, he would have been able to properly balance himself on the motorcycle and not crash it and would not have a current left shoulder disability. For the reasons explained below, the Board finds that entitlement to service connection is warranted. Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that when aggravation of a non-service-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). A June 2013 Alabama Uniform Traffic Crash Report indicates that on June 17, 2013 the Veteran reported that he was pulling out of a parking lot in an apartment complex when a vehicle came over the hill and essentially cut him off. The Veteran reported that he “then accelerated quickly causing his back tire to slide out from under him and he then fell to the pavement.” An emergency department note on the same date as the accident indicated that the Veteran reported that he lost control of his motorcycle and dropped it. He reported that he fell onto his entire left side and was unable to get up on his own until EMS arrived. He complained of lower left back, hip, left shoulder, left elbow and left knee pain. An April 2014 MRI revealed a diagnosis of a left rotator cuff tear. The Veteran contends that although he wasn’t diagnosed with the left rotator immediately after the June 2013 motorcycle accident, he contends that is the cause of his claimed left shoulder disability. He reported that he underwent shoulder surgery in 2015, but reaggravated the injury while carrying groceries in 2017. In a September 2015 medical opinion, a clinician opined that it was less likely than not that the Veteran’s left shoulder disability was caused by his service-connected disability. The examiner cited to the HURT report and MAIDS report which he noted supported the opinion that riding motorcycles is an inherently dangerous activity. He noted that the Veteran reported that he was riding his motorcycle when he pulled off a little and then caught himself with his leg causing his left knee to give way and cause the fall. “Simple physics defines torque as the rate of change of angular momentum. Even the slightest speed of travel combined with the weight of his motorcycle would create an incredible force on his leg and knee that I would not expect most healthy human knees to be able to withstand without injury, let alone a knee with degenerative disease.” In response to the September 2015 VA examiner’s opinion, the Veteran submitted several articles to support his view that motorcycle riding should not be deemed to be a dangerous activity. He submitted an article on “13 Things More Dangerous than a motorcycle;” “Most Dangerous Activities in the World (where motorcycle riding was not included);” and a technical report analyzing the HURT report. He also stated that the examiner failed to consider his previous training or experience with motorcycle riding before citing his conclusion. See Notice of Disagreement. He also contends that his statements regarding what contributed to his motorcycle accident were consistent. See March 2017 VA Form 9. He contends that no other vehicle was involved in the “incident,” and that his documented left knee weakness is the cause of his fall off of his motorcycle. Id. Although the issue the September 2015 examiner addressed was helpful as to the question of whether the left knee caused the fall (which is of a more legal nature than a medical one), the Board requested clarification of that question and posed a second question. In that regard, the Board requested the etiology of the left shoulder disability. The Board requested an addendum opinion which answered first whether it is at least as likely as not that the Veteran’s left knee disability contributed to the motorcycle fall and resulting injury (in other words, whether it is more likely that the motorcycle would have fallen regardless of the left knee disability) and second, whether it is at least as likely as not that the left shoulder disability can be linked to the 2013 motorcycle incident. In an October 2019 medical opinion, the clinician opined that the cause of the Veteran’s rotator cuff was traumatic injury – namely the June 2013 motorcycle accident. The clinician opined that it was less likely than not that the Veteran’s left shoulder disability was due to his service-connected left knee disability. The clinician noted that “careful and detailed lay history was obtained.” The clinician addressed the conflicting reports and noted that he consulted with an orthopedic specialist before forming his conclusions. He noted that the Veteran’s service-connected left knee disability “did not have anything to do with the accident because the knee condition was previously already fully treated and rehabilitated.” He opined that the cause of the motorcycle accident was a car pulling in front of the motorcycle. Based on the foregoing, the Board finds the evidence is in equipoise as to whether the Veteran’s left shoulder disability was caused by a service-connected disability. First, it is at least as likely as not that the Veteran’s current left shoulder disability was caused by the June 2013 motorcycle accident. In that regard, the Board assigns probative value to the June 2013 emergency department note immediately following the accident where the Veteran reported pain in his left shoulder. The Board also assigns probative value to the October 2019 medical opinion which concluded that the Veteran’s left shoulder disability was caused by a traumatic injury (namely the June 2013 motorcycle accident). The Board is left to then decide whether the Veteran’s service-connected left knee disability was the cause of the accident and resultant left shoulder disability. On the one hand, there is evidence that the Veteran suffered from left knee weakness. Although he was not seeking current treatment for the left knee, there is evidence that it had been weak for a while. On the other hand, the Board notes, that contrary to the Veteran’s statement on his VA Form 9, his accounts of the June 2013 motorcycle accident are not consistent with his accident report. In that regard, the Veteran has stated on several occasions that his service-connected left knee was weak and caused the motorcycle accident. However, the June 2013 accident report tells a different story. Nothwithstanding the different accounts on how the accident occurred, the Board finds that there was indeed a motorcycle accident that caused a left shoulder disability. The question then turns to whether the Veteran’s left knee disability is the source of the fall. The Board credits the September 2015 VA examiner’s opinion that, “Even the slightest speed of travel combined with the weight of his motorcycle would create an incredible force on his leg and knee that I would not expect most healthy human knees to be able to withstand without injury let alone a knee with degenerative disease.” This statement assumes that the Veteran’s service-connected left knee disability had some diminished capacity and that it would have been unlikely to withstand the pressures of a fall from a heavy motorcycle. Therefore, the issue becomes not whether the Veteran should not have been engaging in a dangerous activity, but rather how the Veteran’s service-connected left knee disability would have reacted to such an activity. The Board finds that it is at least as likely as not that the severity of the Veteran’s service-connected left knee would have likely not have been strong enough to weather such an event and therefore contributed to the fall off of the motorcycle and ultimate left shoulder injury. In sum, the Board finds that the evidence in support of and against the Veteran’s claim to be of equal probative value. When the totality of the evidence supports the Veteran’s claims or is in relative equipoise, the Veteran prevails on his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving doubt in the Veteran’s favor, the claim for entitlement to service connection for a left shoulder disability is granted. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. In February 2020, the RO issued a Supplemental Statement of the Case (SSOC) based on the evidence of record to date. In August 2020, the Veteran submitted a Disability Benefits Questionnaire (DBQ) regarding the severity of his knee disability. He did not submit a waiver of RO consideration. Therefore, the Board finds that a remand is necessary to afford the RO an opportunity to review the newly submitted medical evidence and issue a SSOC. See 38 C.F.R. § 20.1305(c) (requiring referral of submitted evidence to the AOJ for initial consideration unless initial AOJ consideration is waived in writing or at a hearing on the appeal). (Continued on next page.) The matters are REMANDED for the following action: Readjudicate the Veteran’s appeal, in light of new medical records received in August 2020. If the benefit sought remains denied, provide an additional supplemental statement of the case (SSOC) to the Veteran and his representative and afford them an opportunity to respond. Then, return the appeal to the Board, if in order. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.