Citation Nr: 21007734 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-34 180 DATE: February 10, 2021 ORDER Service connection for a left shoulder disorder is granted. Service connection for a neck disorder is granted. Service connection for a low back disorder is granted. REMANDED Service connection for vertigo is remanded. Service connection for stomach ulcers is remanded. Service connection for perforated bowel is remanded. Service connection for a stomach disorder, to include gastroesophageal reflux disease (GERD), is remanded. Service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran has experienced continuous left shoulder symptomatology since service. 2. Resolving all reasonable doubt in his favor, the Veteran has experienced continuous neck symptomatology since service. 3. Resolving all reasonable doubt in his favor, the Veteran has experienced continuous low back symptomatology since service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder have been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a neck disorder have been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a low back disorder have been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1976. This case returns to the Board of Veterans’ Appeals (Board) after a remand to the agency of original jurisdiction in January 2020. Service Connection The Veteran seeks service connection for various disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). Presumptive service connection may be established for certain chronic diseases, including arthritis and peptic ulcers, which manifest to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. Only the specific diseases listed at 38 C.F.R. § 3.309(a) are subject to presumptive service connection on this basis. When such a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. 1. Service connection for a left shoulder disorder The Veteran attributes his left shoulder disorder to an assault by fellow servicemembers in Germany in 1974, as well as heavy lifting during service. In June 2019, he testified that he has received treatment for shoulder pain since 1977, shortly after separation. After careful review, the Board finds that service connection is warranted based on continuity of symptomatology for a chronic disability. Service treatment records do not document any relevant shoulder injuries, complaints, or treatment. At his hearing, the Veteran explained that he did not seek treatment in service because he thought his left shoulder soreness was related to his regular duties, which involved lifting heavy equipment. He also testified that he felt he could “take the pain” because he was young and strong at the time, and that he used alcohol to self-soothe his pain. His spouse (since 1974), “G.V.,” provided similar testimony. Consistent with the Veteran’s testimony, post-service medical and employer records note complaints of left shoulder soreness in April 1977 and shoulder strain in February 1979. See June 2016 Private Treatment Records. Since 2010, the Veteran has received VA treatment for shoulder pain. On various occasions, he told VA physicians that his symptoms started in the 1970s and/or after an in-service assault. X-rays taken in 2013 revealed acromioclavicular joint osteoarthritis and glenoid dysplasia with resulting arthritis and labral tear. After the 2019 hearing, the Board remanded for a new medical opinion on the etiology of the Veteran’s shoulder disorder. The Board instructed the examiner to consider his testimony and the private medical records from the late 1970s. In March 2020, a VA examiner concluded that the disability is less likely than not related to service, reasoning that there was no medical evidence of traumatic injury in service or of post-traumatic changes on VA radiographs from 2010. The Board finds that the examiner’s opinion does not adequately address the Veteran’s testimony and other evidence regarding his history of treatment since the 1970s. As such, the March 2020 opinion has limited probative value. See e.g. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Nevertheless, the Board finds that the record reasonably establishes a continuity of left shoulder symptomatology since service. The Veteran has been diagnosed with left shoulder arthritis, a chronic disease listed under 38 C.F.R. § 3.309(a). As a layperson, he is competent to report the onset of his subjective symptoms. Here, he has consistently reported that his left shoulder symptoms—pain, stiffness, and soreness—started during service and continued after separation. Other lay statements in the record corroborate the Veteran’s account. In September 2012, G.V. wrote that the Veteran has seen doctors for shoulder, neck, and back pain since the 1970s. G.V. also stated that these problems started after the incident in Germany in 1974. Similarly, the Veteran’s daughter indicated that he has experienced various medical issues, including left shoulder, neck and back pain, for as long as she could remember. See February 2011 & September 2012 Statements. This lay evidence is consistent with information in the available medical records. It is credible and highly probative. See Walker, 708 F.3d at 1339 (describing the more relaxed evidentiary standard for service connection for chronic diseases). Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that he has experienced continuous left shoulder symptomatology since service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is granted. 2. Service connection for a neck disorder Like his shoulder disability, the Veteran asserts that his chronic neck problems started in Germany in 1974, and that he has received treatment for them since 1977. The Board finds that service connection is warranted based on continuity of symptomatology. While service treatment records are silent for any neck-related injuries or symptoms, post-service medical records show neck or cervical spine complaints in 1979. Subsequent VA treatment records reflect that the Veteran was diagnosed with degenerative arthritis of the cervical spine in November 2010. Following the Board’s remand, the March 2020 examiner determined that the disability is less likely than not related to service. Essentially, the examiner reasoned that there was no evidence of traumatic injury in service or post-traumatic cervical spine changes, and that the Veteran’s degenerative changes were instead consistent with normal aging. However, because the examiner’s opinion does not reflect consideration of the Veteran’s testimony and other evidence that he has received treatment for his neck since 1977, the opinion has limited probative weight. Dalton, 21 Vet. App. at 39-40; Nieves-Rodriguez, 22 Vet. App. at 304. The record reasonably supports a finding of continuity of neck symptomatology. By the Veteran’s own competent, credible account, the onset of his neck pain occurred in service, although he did not seek treatment right away. The available medical records show treatment shortly thereafter. Lay statements from the Veteran’s spouse and daughter also support his account of ongoing neck problems and treatment since the 1970s. The Board finds this evidence highly probative. Walker, 708 F.3d at 1339. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that he has experienced continuous neck symptomatology since service. Gilbert, 1 Vet. App. at 53. The appeal is granted. 3. Service connection for a low back disorder The Veteran likewise asserts that his low back problems started in service. Service connection based on continuity of symptomatology is warranted here as well. Service treatment records do not contain any relevant complaints, treatment, or diagnoses. Post-service medical and employer records, on the other hand, document back problems on multiple occasions between 1978 and 1985. The Veteran has received VA treatment for low back pain since 2010. In December 2010, he was diagnosed with degenerative arthritis of the lumbar spine. The March 2020 examiner determined that the Veteran’s low back disability is less likely than not related to service, reasoning that there was no record of traumatic injury in service or evidence of post-traumatic lumbar spine changes on x-rays or MRIs. Instead, the examiner attributed the degenerative changes to normal aging. However, because the examiner’s opinion does not reflect consideration of the Veteran’s testimony and other evidence that he has received treatment for back pain since 1977, the opinion has limited probative weight. Dalton, 21 Vet. App. at 39-40; Nieves-Rodriguez, 22 Vet. App. at 304. As with the disabilities discussed above, the record reasonably supports a finding of continuity of low back symptomatology since service. By the Veteran’s own competent, credible account, the onset of his back pain occurred in service, although he did not seek treatment right away. The available medical records show treatment shortly thereafter. Lay statements from the Veteran’s spouse and daughter also support his account of ongoing low back problems and treatment since the 1970s. The Board finds this evidence highly probative. Walker, 708 F.3d at 1339. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that he has experienced continuous low back symptomatology since service. Gilbert, 1 Vet. App. at 53. The appeal is granted. REASONS FOR REMAND 1. Service connection for vertigo The Board remanded for an addendum opinion on the Veteran’s vertigo because the January 2013 examiner’s opinion was conclusory and lacked an adequate supporting rationale. For the same reason, another remand is necessary. In March 2020, a VA contract examiner diagnosed the Veteran with peripheral vestibular disorder. The examiner determined that this disorder clearly and unmistakably existed prior to service, noting reports of dizziness upon entry and separation. The examiner then opined that the disorder was clearly and unmistakably not aggravated by service because there was “insufficient evidence to establish a baseline of severity” and service treatment records “do not reflect increased manifestations beyond the natural progression for dizziness or a vestibular disorder.” The examiner did not elaborate further. Like the 2013 opinion, the 2020 examiner’s rationale is conclusory and thus inadequate. Nieves-Rodriguez, 22 Vet. App. at 304. Additionally, the opinion is improperly based solely on the examiner’s review of service treatment records. It does not address any relevant lay evidence, such as the Veteran’s 2019 Board testimony. Dalton, 21 Vet. App. at 39-40. On remand, the examiner should specifically address the Veteran’s contention that being repeatedly kicked in the head during an in-service assault in 1974 aggravated his vertigo. See e.g. Hearing Transcript at 14, 17. 2. Service connection for stomach ulcers, perforated bowel, and a stomach disorder, to include GERD The Board remanded the Veteran’s stomach or gastrointestinal claims for a new examination and opinion. In part, the Board instructed the examiner to address the contention that his symptoms are related to medications for his service-connected posttraumatic stress disorder (PTSD). In response, the March 2020 examiner opined that structural diseases such as GERD, esophagitis, hiatal hernia, and peptic strictures are not known to be caused or aggravated by mental conditions like PTSD or medications used to treat PTSD. The examiner did not offer any specific medical rationale in support of this conclusion. Consequently, the Board finds the opinion to be conclusory and inadequate. El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013); Nieves-Rodriguez, 22 Vet. App. at 304. An addendum is necessary. On remand, the examiner should also address the September 2011 opinion from “Dr. K.K.,” the Veteran’s former psychiatrist, which states that his stomach ailments are more likely than not aggravated by PTSD. Furthermore, the Veteran has submitted additional private gastroenterology records, including recent endoscopy results, and several medical articles in support of his claims since the 2020 examination. See November 2020 Correspondence & Attachments. The examiner should address this evidence on remand as well. 3. Service connection for a respiratory disorder Finally, the Board remanded for an opinion on the etiology of any respiratory disorder diagnosed during the pendency of the appeal, to include possible chronic obstructive pulmonary disease. The March 2020 examiner diagnosed the Veteran with asthma, and found “no event, illness, disease or injury in service that would have caused asthma many years later.” Notably, the examiner did not address the Veteran’s testimony that he has had problems with his lungs ever since he became ill from inhaling bug spray in a small, confined room while stationed in New Jersey. See Transcript at 3-4; February 1976 Service Treatment Record. An addendum opinion is warranted. Dalton, 21 Vet. App. at 39-40. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain addendum medical opinions on the nature and etiology of the Veteran’s vertigo/peripheral vestibular disorder, stomach disorder(s), and respiratory disorder(s). Schedule the Veteran for an in-person examination only if the examiner deems it necessary to render the requested opinion. After reviewing the claims file, including this remand, the examiner should address the following: (a.) Is there clear and unmistakable (i.e., medically undebatable) evidence that the Veteran’s vertigo and/or peripheral vestibular disorder existed prior to service? (b.) If so, is there clear and unmistakable (i.e., medically undebatable) evidence that the Veteran’s vertigo and/or peripheral vestibular disorder was not aggravated beyond its natural progression by service? In particular, the examiner’s opinion should reflect consideration of the Veteran’s June 2019 testimony, including his contention that being repeatedly kicked in the head during an in-service assault aggravated his vertigo. (c.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed stomach or gastrointestinal disorder was incurred in or is otherwise related to service? (d.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed stomach or gastrointestinal disorder is proximately due to the Veteran’s service-connected PTSD, or any medications used to treat by PTSD? (e.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed stomach or gastrointestinal disorder is aggravated beyond its natural progression by the Veteran’s service-connected PTSD, or any medications used to treat by PTSD? In particular, the examiner’s opinion should reflect consideration of the September 2011 opinion from “Dr. K.K.,” the Veteran’s June 2019 testimony, and the additional medical records and literature submitted by the Veteran in November 2020. (f.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed respiratory disorder was incurred in or is otherwise related to service? In particular, the examiner’s opinion should reflect consideration of the Veteran’s June 2019 testimony, including his contention that he has had lung problems ever since he became ill from inhaling bug spray while stationed in New Jersey. (Continued on the next page)   2. Review the medical opinions above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. 3. Readjudicate the Veteran’s claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.