Citation Nr: 21011547 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-00 208A DATE: March 2, 2021 ORDER Service connection for left scapula injury is granted. Service connection for left rotator cuff is granted. FINDINGS OF FACT 1. A left scapula disability is shown to be causally or etiologically related to a disease, injury, or incident during service. 2. A left rotator cuff disability is shown to be causally or etiologically related to a disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left scapula disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left rotator cuff disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to July 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in November 2019 and August 2020, at which times it was remanded for further development. In April 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for left scapula injury, to include as secondary to left clavicle fracture residuals 2. Service connection for left rotator cuff, to include as secondary to left clavicle fracture residuals The record reflects that the Veteran is service-connected for residuals of fracture of the left clavicle, at a 10 percent rating from July 26, 1971. The Veteran contends on appeal that his left side scapula and rotator cuff disabilities are due to an injuries he sustained while on active duty in while he was in jump school. He states that the injury occurred in January 1970 from jumping out of a 24-foot (later noted to be 34-feet) tower. He indicated that he did not become aware of the medical terminology delineating clavicle from scapula until approximately 1972. 8/28/2015 VA 21-4138. Additionally, the Veteran, in a January 2021 statement, indicated that the Veteran believe that his left clavicle-area pain was a “temporary thing – that of a pulled muscle”, but he explains that it turned out to be a tear in the supraspinatus tendon. He stated that a later MRI shed light on that it was this tendon that was causing problems. He indicated that he has had pain in the left scapula area for 51 years. He adds that the rotator cuff may have developed as a progression from the left scapular area. 1/06/2021 Correspondence. The medical evidence show current left shoulder disabilities not related to his already service-connected clavicle. For example, a December 2019 VA examination report shows left rotator cuff tear and left degenerative arthritis. As such, the current disability element is met. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested left shoulder arthritis to a degree of 10 percent within the one year following his discharge from service. A June 1971 x-ray of the left shoulder did not document arthritis. Post-service VA treatment records show the first evidence of mild osteoarthritis is in 2013, more than 40 years after his separation from service and outside of the applicable presumptive period. As such, presumptive service connection is not warranted for arthritis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The question for the Board is whether the Veteran has a current disability that is directly related to active service or is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability. Turning to the evidence of record, service treatment records show that the Veteran was treated for a lucent lesion of the left humeral head in August 1970. In January 1971, he complained of suprascapular radiating to the medial forearm. In June 1971, a treatment report notes chronic pain of left shoulder-scapula area. A June 1971 x-ray showed an old cystic lesion of the proximal humerus with no abnormalities except an old healed fracture of the left clavicle. At his separation examination in July 1971, he was noted to have subscapular bursitis. Post-service the Veteran states that he sought treatment from the private sector in 1971-72, but he felt their treatments were off and had side effects from the medications given to him. 1/06/2021 Correspondence. Medical treatment records show that the Veteran reported left shoulder discomfort which he thought was reinjured playing a ball game in May 1999. In June 2000, he was documented to have left shoulder chronic rotator cuff tendonitis. In August 2002 he underwent an MRI and was found to have a normal shoulder. The supraspinatus tendon was intact, the glenoid was normal with no evidence of a tear. There was no significant acromioclavicular joint arthropathy. The remainder of the muscles of the rotator cuff were all intact with normal insertion. In February 2003, he continued to report left shoulder pain and had another MRI that found him to have a normal left shoulder. In June 2007, he related that he had left shoulder pain for the last five months after a slip while roofing. He was doing physical therapy, but he still had pain and weakness. An MRI documented a rotator cuff tear and he underwent left shoulder arthroscopy in August 2007. Another MRI in April 2013 noted moderate acromioclavicular osteoarthritis. In July 2014, an x-ray showed severe left rotator cuff tear with degenerative joint disease. The Veteran underwent a VA examination in September 2015. He was diagnosed with left rotator cuff tear that was noted to be due to a fall from a roof in 2007. The examiner opined that the rotator cuff was not due to an in-service injury because the Veteran sustained the rotator cuff tear in 2007. In April 2016, the Veteran submitted a private medical opinion. The clinician opined that his rotator cuff tear and left scapula disabilities may be related to events while he was in service. Based on the information provided, it was possible that the disabilities were caused during the Veteran’s time in service. The clinician further suggested that he undergo a more extensive evaluation to ascertain causation and level of disability. The Veteran submitted two opinions from his chiropractor that began treating him in about 2017. The correspondence was dated in August 2017 and April 2019. The evaluator described the left shoulder disability history in service, as conveyed by the Veteran, as having torn and stretched multiple shoulder girdle and arm muscles, tendons, ligaments, fascia, and joint articulations. He also noted that he did not receive full and proper care and his shoulder was left heal as it was at the time. Although, he had improved with treatment, he would always have pain, spasms, inflammation, weakness, and restriction in the shoulder area. The evaluator agreed that his left shoulder and upper extremity problems stemmed from the jump school practice accident. In December 2019, VA obtained another opinion. The clinician opined that a left shoulder disability was not incurred in or caused by an in-service event, injury, or illness. The rationale was that the earliest arthritic changes in the shoulder or scapula was in a 2014 x-ray that showed rotator cuff repair and old fracture distal clavicle which was some forty years after separation. Additionally, a 1991 x-ray only showed the old distal clavicle fracture. The clinician also opined that it was less likely than not proximately due to or the result of the service-connected condition. The rationale was that he had arthritis of the acromioclavicular joint shoulder and a rotator cuff tear. The arthritis was due to aging and the rotator cuff tear was due to trauma. Both were noted in 2014, some forty years post separation and therefore less likely to be proximately due to any distal fracture of the clavicle. The clinician did not offer an opinion with regard to whether the left shoulder was aggravated by the distal fracture of the clavicle. However, it was noted that the current severity did not exceed the baseline based on the 1991 x-ray that did not show arthritis. In November 2020, the Veteran underwent another VA examination. He was noted to have left rotator cuff tear, left side arthritis, and left clavicle fracture residuals. The only condition of the clavicle, scapula, acromioclavicular joint or sternoclavicular joint was the healed fracture of the left clavicle. It was noted that there was no evidence, including upon examination, of a scapula disability distinct from his left clavicle. The examiner opined that the left rotator cuff and scapula were less likely incurred in or caused by the claimed in-service injury, event, or illness. The clinician noted that his service medical records documented a left clavicle fracture residual pain, but no chronic rotator cuff issues or scapula issues. The June 1971 x-ray revealed an old cystic lesion of the proximal humerus with no abnormalities except for an old healed fracture of the left clavicle. Additionally, he was not treated for any left shoulder conditions for many years after service. He underwent left rotator cuff repair in 2007 and again in 2013. The examiner also opined that the left rotator cuff and left scapula were not proximately due to or aggravated by his service-connected left clavicle. The left clavicle residuals of pain are not related to any later developing left rotator cuff conditions. He did not develop left rotator cuff conditions for over twenty-five years from separation. There is also no medical information measuring an increased incidence of rotator cuff issues in the presence of pre-existing clavicle fracture. After a review of all the evidence, lay and medical, the Board finds that the evidence is in equipoise that the Veteran’s left rotator cuff disability and left scapula are related to service or caused or aggravated by his service-connected left clavicle fracture residuals. The Board acknowledges the April 2016, August 2017, and April 2019 private opinions submitted by the Veteran. The April 2016 opinion is afforded no probative value as it is speculative. The clinician stated that his disabilities “may be related” to events in service and also suggested that the Veteran undergo further evaluation to ascertain causation. See, e.g., Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was “possibly” suffering from a disability was deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician’s opinion that service “could have” precipitated disability found too speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (physician’s comment couched in terms of “may or may not” was held to be speculative). However, his chiropractor’s 2017 and 2019 opinions concluding that his left shoulder disabilities were related to his active service injuries are worthy of probative weight. The Board places some additional weight on these opinions as there were provided by a clinician with training and experience in caring for muscle, joint, or bone pain. See Chiropractic Adjustment, Cleveland Clinic, https://my.clevelandclinic.org/health/treatments/21033-chiropractic-adjustment. The Board also affords probative value to the November 2020 VA examiner’s opinion. All available, pertinent medical information was presented to, and considered by, the VA examiner. The VA examiner also conducted a thorough review of the evidence of record, to include the Veteran’s lay statements regarding his current disabilities, and performed physical examination of the Veteran. Based on the foregoing, a resolving doubt in the Veteran’s favor on the material issue of nexus, the Board finds a left shoulder disability, including rotator cuff, scapula, or arthritis are at least as likely as not shown to be causally or etiologically related to a disease, injury, or incident during service. 38 U.S.C. § 5017(b). Consequently, service connection for such disorders is warranted.   The Board notes that any initial ratings and effective are downstream matters and will be assigned by the AOJ upon implementation of this grant and further notes that while Diagnostic Code (DC) 5203 is for rating impairment of the clavicle or scapula muscle codes, DC 5301 and 5303, could apply. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.