Citation Nr: 21009098 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 16-20 963 DATE: February 19, 2021 ORDER Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a left elbow disability is granted. REMANDED Entitlement to service connection for muscle spasms, to include as due to Gulf War environmental exposure is remanded. FINDINGS OF FACT 1. The Veteran’s left shoulder disability is due to wear and tear from his military occupational specialty (MOS). 2. The Veteran’s left elbow disability is due to wear and tear from his MOS. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a left elbow disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to November 1993. This matter came before the Board of Veterans Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during an August 2019 hearing. The transcript of the hearing is of record. A January 2020 Board decision granted service connection for left and right knee disabilities and remanded the issues on appeal for further development. An August 2020 Board decision again remanded the issues for further development. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay 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 disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, “the preponderance of the evidence must be against the claim.” Id. at 54. 1. Entitlement to service connection for a left shoulder disability The Veteran contends that his left shoulder disability is due to wear and tear from his Military Occupational Specialty (MOS). The Board finds that service connection is warranted. The Veteran’s DD-214 documents an MOS of motor transport operator and military personnel records show an Army Commendation Medal for work with medical resupply, food and water provisioning for over 20,000 refugees. The Board notes that the August 2020 Board decision found that the January 2020 VA shoulder examination was inadequate for review as it lacked a reasoned medical explanation for its findings. It will therefore not be addressed herein. The Veteran submitted his Army Physical Fitness Test scorecards, which show 264 points pre-deployment and 179 points after deployment. The comments from the June 1992 Test date noted joint pains since returning from the Gulf An August 2014 private opinion stated that the Veteran’s left shoulder disability and pain were as likely as not due to military service. As the provider did not provide a basis for this opinion, it is inadequate for review and the Board assigns it no probative weight. A December 2018 VA examination diagnosed left shoulder rotator cuff tear. The Veteran reported a constant dull ache on the left shoulder with decreased range of motion. The opinion solely addressed whether the left shoulder disability was due to exposures in Southwest Asia and did not address the question of whether it was due to wear and tear from the Veteran’s MOS. A July 2020 private opinion found that the Veteran’s left shoulder disability was likely due to overuse from his MOS. The provider noted the Veteran’s reports of his duties loading and unloading numerous vehicles, causing stress on his upper extremities. The provider specifically noted that the physical demand rating for the Veteran’s MOS was “very heavy.” The provider stated that repetitive use and overuse can cause acute musculoskeletal injuries, which can lead to chronic injury and pain and cited studies showing an association between chronic shoulder disorders and overuse injuries, including tendinopathies. A September 2020 VA examination diagnosed left shoulder degenerative arthritis, shoulder impingement and rotator cuff tendonitis, but found that they were not incurred in service or caused by the left shoulder disability during service. As a rationale, the examiner stated that there was insufficient evidence to support a condition stemming from active duty, noting a lack of a chronic shoulder condition at exit. The examiner noted the Veteran’s complaints of joint pain on his army physical fitness examinations but stated that there was no shoulder condition noted. Therefore, the examiner stated, the injuries were acute because they were not noted at exit. The Board finds that this rationale is essentially based on a lack of a chronic shoulder diagnosis in service, particularly as the examiner repeatedly relied on the absence of a finding of “chronic shoulder condition” at separation. An opinion based on the absence of a disability in service, as this one, is inadequate and the Board therefore assigns it no probative weight. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). At the outset, the Board finds that the July 2020 private opinion is adequate for appellate review. There is no evidence that the provider was not competent or credible, and as the report is based on the Veteran’s statements, medical records review and the examiners’ observations, the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the August 2019 Board hearing, the Veteran reported that he worked in transport during service and loaded and unloaded supplies. He reported that he felt a pinch in his shoulders that would come and go and that he self-medicated during service with Motrin. The Board notes that the Veteran is competent to report his duties and lay observable symptoms such as pain and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the competent evidence of record shows that the Veteran’s left shoulder disability was likely due to wear and tear from his MOS. The record shows diagnoses of left shoulder arthritis, tendonitis and rotator cuff tear and tendonitis. As the September 2020 VA opinion has been found to be inadequate, the only competent evidence of record regarding the relationship between the Veteran’s left shoulder disabilities and wear and tear from his MOS is the July 2020 private opinion. As noted above, that opinion found that the Veteran’s disabilities were due to the heavy physical demands of his MOS, basing that opinion on an association between repetitive and overuse injuries and chronic shoulder disabilities. Service connection is therefore warranted. 2. Entitlement to service connection for a left elbow disability The Veteran contends that his left elbow disability is due to wear and tear from his Military Occupational Specialty (MOS). The Board finds that service connection is warranted. As noted above, the Veteran had an MOS of motor transport operator and the record shows work with medical resupply. The Veteran submitted his Army Physical Fitness Test scorecards, which show 264 points pre-deployment and 179 points after deployment. The Comments from the June 1992 Test date noted joint pains since returning from the Gulf A January 2020 VA examination diagnosed left elbow medial epicondylitis and noted a prior diagnosis of tendonitis. The examiner noted the Veteran’s reports of left elbow pain beginning after his deployment and that he self-medicated with Tylenol/Motrin. He reported that he now had chronic left elbow pain. The examiner found that the left elbow disability was not due to exposures in Southwest Asia, stating that musculoskeletal conditions were due to physical impairment of the joints rather than exposure events. The January 2020 examiner also submitted a medical opinion which found that the left elbow disability was not due to service, including loading and unloading supplies, as there was no evidence of chronicity of left elbow conditions that initiated during service and continued after. A July 2020 private opinion found that the Veteran’s left elbow disability was likely due to overuse from his MOS. The provider noted the Veteran’s reports of his duties loading and unloading numerous vehicles, causing stress on his upper extremities, and specifically noted that the physical demand rating for the Veteran’s MOS was “very heavy.” The provider stated that repetitive use and overuse can cause acute musculoskeletal injuries, which can lead to chronic injury and pain and cited a study regarding the prevalence of repetitive use musculoskeletal injuries in the U.S. military which noted that repetitive actions cause small microtears and the demands of military service did not often allow for proper healing, leading to chronic pain and injury. A September 2020 VA examination diagnosed left elbow bursitis, lateral epicondylitis and medical epicondylitis. The examiner noted a history of unspecified trauma to the elbow during middle east deployment and conservative treatment as well as current symptoms of left elbow pain. The examiner opined that the Veteran’s elbow disabilities were due to physical trauma and wear and tear on the joints. The September 2020 examiner also submitted a medical opinion which found that the left elbow disabilities were not likely “incurred or caused by the left elbow during service.” As a rationale, the examiner stated that there was insufficient evidence to support an elbow condition stemming from active duty, citing the “lack of chronic elbow condition at exit.” The examiner then noted that initial treatment notes were well post separation. Regarding the notes of joint pain in the Army Physical Fitness test scorecards, the examiner stated that they did not note an elbow condition and therefore he inferred that the injuries were acute as no chronic conditions were noted at exit. The Board notes that the opinion regarding the left elbow is silent for discussion of the requirements of the Veteran’s MOS. At the outset, the Board finds that the VA and private opinions are adequate for appellate review. There is no evidence that the providers were not competent or credible, and as the reports are based on the Veteran’s statements, medical records review and the examiners’ observations, the Board assigns them significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). At the August 2019 Board hearing, the Veteran stated that he believed it was the heavy lifting and repetitive motion of his MOS that caused his current left elbow disability. While the Veteran is competent to report symptoms such as pain, as a lay person he is not competent to opine on a medically complex question such as etiology. The Board therefore assigns his statements no probative weight. Upon review of the above, the Board finds that the preponderance of the competent evidence supports the conclusion that the Veteran’s left elbow disability was caused by wear and tear from his MOS during active duty. The record shows a current disability of left elbow bursitis and epicondylitis. The July 2020 private opinion found that they were likely caused by injuries from the Veteran’s MOs, which the provider noted entailed very heavy physical demands that would cause wear and tear on the joints and that repetitive use injury leading to chronic pain and injury was therefore likely. The Board acknowledges that the January 2020 and September 2020 VA opinions found that the left elbow disability was not due to loading and unloading, but assigns greater weight to the July 2020 private opinion as it had a more detailed consideration of the specific requirements of the Veteran’s MOS and the mechanism of injury from repetitive use. The July 2020 private opinion specifically noted the very heavy physical demand rating for the Veteran’s job, while the January 2020 and September 2020 VA opinion simply referred to “loading and unloading” without discussing the level of physical strain involved and its likely effects. In contrast, the July 2020 opinion also cited specific studies regarding repetitive use injuries in service and discussed how they related to the Veteran’s chronic pain and disabilities. The Board notes that both the January 2020 VA and September examiners did find that the Veteran’s elbow disability was due to wear and tear on the joints, consistent with the July 2020 private opinion, but neither specified a source for that wear and tear or explained why it was not caused by the Veteran’s MOS. The January 2020 examiner simply said that there was “no chronicity,” without further discussion. The September 2020 opinion relied on a lack of diagnosis at separation and a finding that any injuries in service were therefore likely acute. However, the July 2020 private opinion addressed this conflicting opinion by clearly explaining the mechanism by which acute repetitive and overuse injuries develop into chronic pain and injuries. When there are conflicting statements or opinions from medical professionals, it is within the Board’s province to weigh the probative value of those opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). Moreover, the Board may give greater probative weight to one examiner’s opinion over another’s based on its reasoning and whether the examiner reviewed prior clinical records and other pertinent evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board therefore assigns more weight to the July 2020 private opinion as it more clearly considered the specific impact of the Veteran’s MOS, was more detailed in its analysis, and explained the mechanism behind the progression of acute overuse injuries into chronic disabilities, reconciling its positive nexus opinion with the contradictory findings of the September 2020 examiner. As the preponderance of the competent evidence indicates that the Veteran’s current left elbow disability is due to wear and tear from his MOS, the Board finds that service connection is warranted. REASONS FOR REMAND Entitlement to service connection for muscle spasms, to include as due to Gulf War environmental exposure is remanded. The August 2020 Board decision requested a new VA examination to determine if the Veteran’s muscle spasms were symptoms of an undiagnosed illness. A September 2020 VA examination found that the Veteran did not have an undiagnosed illness involving symptoms of muscle spasm but had multiple diagnosed muscle spasm disabilities with a clear/specific etiology, diagnosing strains of muscle groups XI, XIII and XX, cervical strain, bilateral hip iliopsoas tendinitis and thoracolumbar strain. The examiner then found that the Veteran’s diagnosed muscle strains, cervical spine, bilateral hip and thoracolumbar spine disabilities were not due to exposures in Southwest Asia as they were not clinically associated with environmental exposures. The examiner stated that musculoskeletal conditions were due to “wear and tear” rather than an exposure event. The Board notes that the examiner did not make any findings regarding the nature of that wear and tear. The examiner also opined that the Veteran’s diagnosed muscle spasm disabilities were not due to muscle spasms in service, stating that there was “no evidence” of muscle spasms that initiated during service and continued thereafter. The Board notes, however, that the Veteran’s June 1992 Army Physical Fitness Scorecard noted reports of muscle spasms since deployment. While the examiner discussed those scorecards as they pertained to the issues of the left elbow and shoulder disabilities, the examiner did not address those in-service reports of muscle spasms. Particularly as the examiner stated that there was “no evidence” of in-service muscle spasms, the Board finds that the issue should be remanded for a new opinion to consider the June 1992 muscle spasm reports. As noted above, the September 2020 examiner found that the Veteran’s diagnosed muscle spasm disabilities were due to musculoskeletal wear and tear. While, the examiner did not identify the nature of that wear and tear, given the Veteran’s lay statements regarding pain while performing his MOS, the Board finds that the question of whether the Veteran’s muscle spasm disabilities are due to wear and tear from his MOS has been raised by the record and should be addressed upon remand. The matters are REMANDED for the following action: 1. Obtain a VA opinion from an appropriate provider, other than the one who provided the September 2020 VA examination, to determine the etiology of his diagnosed muscle spasm disabilities, including strains of muscle groups XI, XIII and XX, cervical strain, bilateral hip iliopsoas tendinitis and thoracolumbar strain. An in-person examination is not required unless the provider deems it necessary. The provider should review the file and provide a complete rationale for all opinions expressed. The opinion shoulder address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed muscle spasm disabilities, including strains of muscle groups XI, XIII and XX, cervical strain, bilateral hip iliopsoas tendinitis and thoracolumbar strain, are related to the Veteran’s active service, to include whether they are due to wear and tear from the Veteran’s military occupational specialty (MOS). The opinion should address the reports of muscle spasms since deployment in the June 1992 Army Physical Fitness Scorecard. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that the Veteran is competent to report the onset of lay observable symptoms such as pain and that his competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.