Citation Nr: 21005881 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-42 548 DATE: February 2, 2021 ORDER Service connection for a right shoulder disability is granted. Service connection for a left shoulder disability is granted. Service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a disability of the hands and fingers is remanded. Entitlement to service connection for joint pain, to include the upper back and legs, is remanded. FINDINGS OF FACT 1. The Veteran’s current right and left shoulder disabilities had their onset during his active duty service. See Service Treatment Records (STRs) dated October 1988, February 1989; December 2019 VA Examination. 2. The Veteran’s GERD neither had its onset in nor is otherwise related to his active duty service. See VA Examinations dated April 2015, December 2019. 3. The Veteran’s GERD was neither caused nor aggravated by his service-connected irritable bowel syndrome (IBS). See id. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1985 to March 1989 and in the Army National Guard from November 1990 to July 1991 and from December 1991 to June 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from November 2015 and April 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. 1. Service Connection for Right and Left Shoulder Disabilities Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has a current diagnosis of bilateral shoulder degenerative arthritis. See December 2019 VA Examination. His STRs reflect complaints of a “deep chill,” ache, and pain in the left shoulder. See STRs dated October 1988, February 1989. The Veteran and his wife have both reported that the pain in his shoulders began during his service, in the mid-1990s. See August 2015 Statement of Veteran’s Wife; March 2019 Board Hearing; December 2019 VA Examination. In addition, a December 2019 VA examination concluded that the Veteran’s right shoulder disability had its onset during his active duty service. The examiner did not provide an opinion regarding the Veteran’s left shoulder. Considering the evidence as a whole, the Board finds that both the Veteran’s right and left shoulder disabilities had their onset during his active duty service. He has a current diagnosis of a disability in both shoulders and has consistently reported that both had their onset in service. His STRs reflect left shoulder complaints in service, and the December 2019 VA examination concludes that his right shoulder disability had its onset in service as well. Unfortunately, the December 2019 VA examiner partly rested her opinion on a mistake of the record: the examiner noted the STRs showing complaints of shoulder pain in service, but stated that they showed right shoulder complaints, whereas in fact the record reflects left shoulder complaints. Nevertheless, the examiner also rested her opinion on the Veteran’s consistently reported history of shoulder pain and chills from service to the present and the consistency of his in-service MOS (vehicle mechanic) with shoulder injury. In any case, to the extent that the examiner’s mistake of the record raises any reasonable doubt as to the connection of the Veteran’s right or left shoulder disabilities to service, the Board resolves all such doubt in the Veteran’s favor. See 38 C.F.R. § 3.102. Therefore, the Board finds that the Veteran’s right and left shoulder disabilities had their onset during his active duty service. Accordingly, service connection for right and left shoulder disabilities is warranted. 2. Service Connection for GERD The Veteran has a current diagnosis of GERD, which he contends is either related to his environmental exposures during his service in the Persian Gulf or secondary to his service-connected IBS. See February 2015 Veteran Statement; April 2015 VA Examination; July 2015 Notice of Disagreement. However, the Board finds that the Veteran’s GERD is neither related to his active duty service nor secondary to his service-connected IBS. To begin with, the Veteran’s STRs do not contain any complaints of or treatment for GERD. The Veteran also testified at his March 2019 Board hearing that his GERD did not begin in service. Therefore, the Board finds that the Veteran’s GERD did not have its onset in service. As for the Veteran’s contention that his GERD is related to environmental exposures during his service in the Persian Gulf, an April 2015 VA examination concluded on the contrary that GERD is not undiagnosed illness or part of a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology. Rather, the examiner stated that “GERD is a common condition that is widespread in the general population with a clear and specific etiology and diagnosis. It is not known to be caused by hazardous waste exposure in [the] Gulf War.” The examiner further explained that “GERD is caused by weakness or dysfunction in the relaxation of the esophageal sphincter which allows stomach acid to flow back into the esophagus resulting in frequent heartburn.” Finally, the examiner noted that the Veteran’s history of obesity and smoking were both independent risk factors for GERD. A December 2019 VA examination reached the same conclusions as the April 2015 examination, and for the same reasons. Moreover, both examinations concluded that the Veteran’s GERD was not secondary to his IBS. The April 2015 examiner stated that “[b]oth conditions are relatively common in the general population, so some patients can have both IBS and GERD, but there is no known causal association.” The examiner explained that while GERD affects the esophageal sphincter, IBS “affects the large intestine” and “is not on the list of risk factors for GERD. The December 2019 VA examiner further noted that because the diseases affect distinct body parts, the Veteran’s IBS would not aggravate his GERD. The opinions of the April 2015 and December 2019 VA examiners are competent, credible, and entitled to significant weight. Moreover, there is no evidence to the contrary. Therefore, the Board finds that the Veteran’s GERD is neither related to environmental exposures during his service in the Persian Gulf nor secondary to his service-connected IBS. Accordingly, service connection for GERD is not warranted. REASONS FOR REMAND 1. Entitlement to Service Connection for a Neck Disability When VA undertakes to provide an examination for a claim for service connection, even if not statutorily obliged to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded on VA examination in support of this claim, in December 2019. At the examination, the Veteran reported that he had injured his neck in service and it had hurt him ever since. The Veteran gave the same history of his neck disability at his March 2019 Board hearing. Nevertheless, the examiner concluded that his neck disability was not related to his active duty service, partly on the grounds that there was no record of an injury in service and his current neck problems had their onset in 2009. Although this conclusion directly contradicts the Veteran’s reported history, the examiner did not address the Veteran statements or explain her contrary conclusion. Therefore, the Board finds that this opinion is inadequate for VA purposes. Accordingly, a remand is necessary to provide the Veteran a new VA examination and opinion. In remanding this issue, the Board does not make a preliminary formal finding as to the credibility of the Veteran’s report of an in-service injury. Rather, the Board merely requests that on remand the examiner accept the Veteran’s testimony for purposes of the medical nexus opinion. See Smith v. Wilkie, 32 Vet. App. 332, 337 (2020). 2. Entitlement to Service Connection for a Disability of the Hands and Fingers Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Here, a December 2019 VA examiner noted that the Veteran’s left-hand symptoms were caused by cervical radiculopathy noted in 2009. In light of this, the Board notes that if the Veteran’s claim for service connection for a neck disability is granted on remand, he may be eligible for service connection for a disability of the hands and fingers, secondary to the neck disability. Therefore, because the Veteran’s claim for service connection for a disability of the hands and fingers hinges on the adjudication of his claim for service connection for a neck disability, the Board cannot adjudicate the former claim apart from the latter. Accordingly, the Veteran’s claim for service connection for a disability of the hands and fingers is remanded pending the adjudication of his claim for service connection for a neck disability. 3. Entitlement to Service Connection for Joint Pain, to Include the Upper Back and Legs The Veteran has been afforded one VA examination in support of his claims for service connection for joint pain, to include the upper back and legs, in December 2019. In multiple opinions, the December 2019 VA examiner opined that the Veteran’s current disabilities were distinct from his in-service complaints of joint and body aches. However, the examiner failed to provide an adequate rationale for this opinion. The examiner noted that the Veteran’s current complaints were “all explained with clear etiologies,” in contrast to an earlier examination, a few years after the Veteran’s separation from service, which found “a diagnosis of ‘arthralgia’ that is non-specific.” Moreover, the examiner noted that all save two of the Veteran’s in-service complaints of joint pain or body aches were acute, rather than chronic. The examiner did not note or account for the Veteran’s hearing testimony that his current join pain had had its onset in the 1990s. See March 2019 Board Hearing. Moreover, the examiner did not address the possibility that earlier generic findings were later assigned more specific diagnoses, or that the Veteran’s current conditions represent a progression of his earlier conditions in service. Therefore, the Board finds that the December 2019 VA examination is inadequate for VA purposes. Accordingly, a remand is necessary to provide the Veteran a new VA examination and opinion in support of this claim. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination and opinion on his claim for service connection for a neck disability. Upon thorough review of the claims file and physical examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s neck disability had its onset in or is otherwise related to his active duty service, to include an injury in Saudi Arabia in 1991 while lying under a car doing repair work? For purposes of providing the requested opinion, please accept as true the Veteran’s report of an injury in Saudi Arabia in 1991 while lying under a car doing repair work. (The Board reminds the Veteran that in asking the examiner to accept his testimony, the Board does not at this time make a finding as to the credibility of his testimony.) 3. After completing the development outlined in Item 1., schedule the Veteran for VA examinations and opinions on his claim for service connection for joint pain, to include the upper back and legs. Upon thorough review of the claims file and physical examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran’s joint disabilities, to include a disability of the upper back and legs, had its onset in or is otherwise related to his active duty service, to include environmental exposures in South East Asia and in-service complaints of chills and various aches? (b.) In particular, please state whether: 1) any current back or leg condition may represent a progression of the Veteran’s in-service complaints, or 2) any current back or leg condition may have been noted under a different assessment or diagnosis in service or earlier in the record. The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, Associate Counsel 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.