Citation Nr: 21008088 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-31 340 DATE: February 11, 2021 ORDER Service connection for a left shoulder condition is denied. Service connection for an upper back condition is denied. REMANDED Entitlement to service connection for a condition claimed as general joint pain is remanded. FINDINGS OF FACT 1. The preponderance of record is against a connection between the Veteran’s left shoulder condition and an in-service injury. 2. The preponderance of record is against a connection between the Veteran’s upper back condition and service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 2. The criteria for service connection for an upper back condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1959 to September 1963 and from December 1963 to January 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A. Procedural History This matter has a lengthy procedural history. Following an original September 2014 Board decision denying the Veteran’s claims for service connection for a lumbar spine condition and for a left shoulder condition, the US Court of Appeals for Veterans Claims (CAVC) granted a December 2015 joint motion for remand, leading to a March 2016 Board remand and then a May 2017 Board decision denying the Veteran’s claims. In October 2018, the CAVC granted a joint motion for partial remand stating that the Veteran had not been provided with adequate VA examinations. Following Board decisions in June 2019 and January 2020 to ensure adequate VA examinations were provided, service connection for a lumbar spine condition was granted by the RO in a July 2020 rating decision. The Board’s January 2020 decision interpreted the Veteran’s original claim as including not only a claim for service connection for the lumbar spine but also for the upper back, as well as including a claim for service connection for general joint pain. Thus, the January 2020 decision, as well as the most recent Board decision in October 2020, remanded to ensure adequate VA examinations for all three pending claims—left shoulder, upper back, and general joint pain. Following the Board’s October 2020 decision, addendum opinions were provided in November 2020. After reviewing the opinions, the Board finds that the Veteran has now been provided adequate VA opinions for his left shoulder and upper back claims, thereby complying with the terms of the October 2018 CAVC order. In turn, service connection for a left shoulder condition and for an upper back condition may now be adjudicated on the merits. Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding service connection for joint pain, the Board unfortunately finds that a fully adequate VA opinion was not provided, as described in the remand section below. Therefore, this claim must be remanded again. Id.; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). B. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be presumed if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Alternatively, under 38 C.F.R. § 3.303(b) service connection is available for continuity of symptomatology of a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1331. Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a). 1. Left Shoulder The Veteran contends that his current left shoulder condition is due to an injury he sustained playing flag football during service in 1968. He states that after the injury he was x-rayed, which were negative, and that he wore a sling for one or two weeks, as corroborated in a statement submitted by the Veteran’s wife. Within service treatment records, on a May 1973 re-enlistment report of history, the Veteran answered “No” to whether he at that time or before had a painful shoulder. On his retirement examination, he answered “No” to the same question, and the examining clinician found him in normal condition. A treatment record from November 1995 reported a history of AC arthritis, with imaging showing “early post traumatic osteolysis or other arthritic change.” In November 2000, the Veteran was referred to an orthopedic surgeon and underwent arthroscopic surgery. The post-operative diagnosis was internal derangement of the left shoulder, tear of rotator cuff and SLAP lesion, type-1, with repair of the rotator cuff and coracoacromial ligament resection. The Veteran related in his original claim that following the surgery the surgeon told the Veteran that “he found cartilage damage from the 1968 injury.” The Veteran attempted to obtain the records from the surgeon’s office for upload in this matter but was informed the records have been destroyed. A March 2001 treatment note related the Veteran had left-sided neck or shoulder pain. The first diagnosis was adhesive capsulitis of the left shoulder with radicular neuralgia affecting the left upper extremity, with a subsequent diagnosis of cervicobrachial radicular neuralgia affecting the left upper extremity. The Veteran reported he underwent surgery for the left shoulder again in 2015. A CT scan of the left shoulder in April 2016 noted “typical age-appropriate AC joint changes.” In an April 2016 statement, the Veteran wrote that he was having problems with his shoulder prior to the 1990s, but that he did not have records from earlier than then. Following the Board’s most recent October 2020 remand, an updated opinion was provided in November 2020 by the clinician who previously examined the Veteran. After review of the Veteran’s entire file, the clinician stated that while it was “possible that the initial claimed injury in 1968 could have led to arthritic changes in the shoulder joint, . . . given the Veteran’s age, the finding of mild degeneration” on the 1995 imaging was “not consistent with a traumatic injury event” and therefore supported that the Veteran’s condition was “more likely due to normal wear and tear.” The examiner was also asked to address whether the surgery for a torn rotator cuff in 2000 was related to the Veteran’s in-service injury, to which the examiner responded that a torn rotator cuff is an acute injury and that the 1995 imaging showing early post-traumatic osteolysis was not consistent with an injury from decades prior. Based on review of all the evidence of record, the Board finds that service connection has not been established. Though the evidence shows that the Veteran has a current disability of the left shoulder and that he was injured while playing flag football during service, the preponderance of the evidence is against a connection between the current disability and the in-service injury. The Board finds highly probative the November 2020 opinion, which was based on a prior examination of the Veteran and review of all of his records, including the Veteran’s own descriptions of the injury he sustained. The opinion reasoned that the 1995 imaging finding of mild degeneration made it less likely than not that the in-service injury in 1968 was the cause of the Veteran’s arthritis, adding that “post-traumatic arthritis tends to be interpreted as more significant than ‘mild degenerative changes’ by most radiologists.” Moreover, to the extent the Veteran’s current disability could be related to residuals of the November 2000 surgery, the clinician explained that the imaging supported it was less likely than not that the rotator cuff condition was related to the Veteran’s service. The Board acknowledges the Veteran’s statement that after the November 2000 surgery his surgeon told him “he found cartilage damage from the 1968 injury.” Unfortunately, as the Veteran noted, medical records from the surgeon are no longer available. The November 2020 clinician’s opinion was based on review of the entire file and application of his medical expertise to the left-shoulder imaging from 1995, and therefore the Board finds the opinion that the arthritis or residuals of rotator cuff surgery was less likely than not related to the in-service injury of more probative value than the recounted statement of the November 2000 surgeon that he found cartilage damage and that he attributed it to the injury from decades prior. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that probative value of an opinion depends on the scope of the facts considered and application of expertise to the facts); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board’s role is to assess the weight of all evidence). Finally, regarding the arthritic nature of the Veteran’s current left shoulder conditions, the Board does not find sufficient evidence to establish that the condition manifested within one year after service, and therefore a presumption of service connection for arthritis as a chronic disability cannot be supported. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As the preponderance of the evidence is against a connection between a current left shoulder condition and the in-service injury, service connection for a left shoulder condition cannot be granted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49. 2. Upper Back The Veteran seeks service connection for arthritis and spinal stenosis of his upper back. Turning to the evidence, a service treatment record from December 1973 saw the Veteran appearing with pain in his neck, without history of an injury. On a May 1973 re-enlistment report of history, the Veteran answered “No” to whether he at that time or before had recurrent back pain. On his retirement examination, he answered “No” to the same question, and the examining clinician found his spine in normal condition. In a March 2010 correspondence, the Veteran related that his doctor told him “in 1999 that [he] had bone spurs in [his] upper back caused by arthritis.” An April 2016 CT scan of the cervical spine found marked degenerative changes, osteophytes, and spinal stenosis. At an April 2020 VA examination for the upper back, the Veteran reported his neck problems began in service in 1973, for which he went to sick bay. Following the Board’s prior October 2020 remand, an addendum opinion was provided in November 2020 by the clinician who previously examined the Veteran. After review of the Veteran’s entire file, including the Veteran’s visit to sick call in 1973, the clinician opined that it was less likely than not that the Veteran’s upper back condition is related to service. The clinician noted that at the time of separation the Veteran answered “No” to whether he had any back issues, and that while there was a report of back pain in the year after service, that report was specifically of pain in the lower back, without mention of pain in the upper back. Based on all the evidence of record, the Board finds that service connection is not warranted. The most probative evidence regarding a nexus to service is the November 2020 opinion, which was based on a prior examination of the Veteran, on review of his entire file, and on specific consideration of his in-service treatment for neck pain in 1973. The Board acknowledges the Veteran’s contention that he believes his neck condition is due to service, but there is no evidence the Veteran has education, training, or experience that would qualify him to opine on the etiology of his upper back condition, which is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Though the Veteran’s upper back condition is arthritic in nature, the Board does not find sufficient evidence to support that the condition manifested within one year after service. Thus, a presumption of service connection for arthritis as a chronic disability cannot be supported. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Given that the preponderance of the competent evidence supports that it is less likely than not that the Veteran’s upper back condition is related to service, service connection for an upper back condition cannot be granted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49. REASONS FOR REMAND The Board’s most recent October 2020 decision remanded for an opinion regarding a connection between the Veteran’s general joint pain and service. Unfortunately, the November 2020 opinions did not specifically address the claim for joint pain, and therefore the Board must remand for compliance with this directive. Dyment, 13 Vet. App. at 146–47; Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of the Veteran’s claim for general joint pain. If he is available, obtain the opinion from the author of the November 2020 opinions. The clinician is asked to opine on the following: (a) Does the Veteran currently have a diagnosable condition manifesting in general joint pain/arthralgia? (b) For any diagnosed condition manifesting in general joint pain, is the condition at least as likely as not related to service? (c) For any diagnosed condition that is arthritic, is it at least as likely as not that the condition was incurred in service or within one year after separation? In rendering these opinions, the clinician is asked to specifically consider and discuss a September 1976 service treatment note showing treatment of “ASA therapy (anti-inflammatory).” 2. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.