Citation Nr: 21012907 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 08-20 306 DATE: March 5, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a bilateral shoulder disability is granted. FINDINGS OF FACT 1. The Veteran has a current cervical spine disability. 2. The Veteran has experienced cervical spine pain during and since service. 3. The preponderance of the evidence shows that the cervical spine disability is as likely as not related to an in-service event or occurrence with continuity of symptomology since service. 4. The Veteran has a current bilateral shoulder disability. 5. The Veteran has experienced bilateral shoulder pain and stiffness during and since service. 6. The preponderance of the evidence shows that the bilateral shoulder disability is as likely as not related to an in-service event or occurrence with continuity of symptomology since service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral shoulder disability have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1979 to August 1992, with subsequent Reserve service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2007 and December 2007 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). September 2007 rating decision denied service connection for cervical spine disability. December 2007 rating decision denied service connection for cervical spine disability and bilateral shoulder disability. A Board hearing was held in December 2010 and February 2018 with respect to these issues. Most recently, in December 2020, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ) in a videoconference hearing. A transcript of that hearing and the previous hearings have been associated with the record. These matters were previously before the Board in June 2011, June 2014, and most recently in November 2018, when they were remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the November 2018 remand directives regarding requesting and obtaining records, but finds that the VA examination afforded the Veteran is inadequate. However, because the Board is granting the benefit sought on appeal in full, there is no prejudice to the Veteran in proceeding with adjudication of the claim. Service Connection 1. Entitlement to service connection for a cervical spine disability is granted. 2. Entitlement to service connection for a bilateral shoulder disability is granted. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that she currently suffers from a cervical spine and bilateral shoulder disability that began during service and is a consequence of the duties performed during service as part of her military occupational specialty. Specifically, the Veteran contends that she injured her shoulders and neck in 1984, while on guard duty in service, as a result of wearing a radio backpack for an extended period of time. See December 2020 Hearing Transcript pgs. 3,4. Preliminarily, the Board finds that the Veteran has a current condition of cervical spine disability namely degenerative disc disease (DDD), s/p cervical fusion, and a current bilateral shoulder condition diagnosed as shoulder impingement syndrome with degenerative and traumatic changes. See October 2019 VA Examinations. The Veteran’s service treatment records (STRs) show the Veteran received treatment in February 1984 and was diagnosed with “backpack paralysis” affecting the thoracic longus nerve. It was also noted that she sustained “complete denervation in serratus anterior muscle…in the upper arm that are supplied by the plexus.” The Veteran asserts that she received three months of treatment while on active duty for her right shoulder due to her inability to raise her right arm after the 24-hour duty of wearing the radio pack. She reported feeling pain in both shoulders, neck, and back following this particular 24-hour period. She continued to seek treatment for both her shoulders and her neck after leaving active duty and joining the Reserves. See February 2008 Hearing Transcript pg. 4. Treatment records from the Veteran’s time in the Reserves reveal several complaints of neck and shoulder pain. See February 1999 Service Treatment Record. After leaving the Reserves, the Veteran reported seeking private treatment for both conditions, but most often doing self-treatment with over-the-counter pain medication. See December 2020 Hearing Transcript pg. 10. VA and private treatment records reveal treatment for neck and shoulder pain beginning as early as July 1999. See July 1999 Private Treatment Records. Subsequently, the Veteran underwent surgical procedures to attempt to remedy her cervical spine disability. In December 2020, the Veteran testified at a Board hearing before the undersigned. She reported that her neck and shoulder pain began in service and has continued ever since. During service in the United States Army her military occupational specialties were radioman and administrative specialist. She detailed that in 1984 she was placed on a 24-hour watch of a damaged fence on base in Germany, so to keep unwanted individuals from the motor pool. During this 24-hour period, the Veteran was required to wear a backpack with a radio, weighing at least 30 pounds, for 6 hours at a time, with brief intermittent breaks. In a matter of days, she reports having had pain and muscle spasms in her shoulders to her neck, so much so that she became unable to raise her right arm. She testified that she was immediately referred to a German clinic where she received doses of electric shock to the muscles and nerves. She further testified that she was never placed on a temporary profile for her neck and shoulders, despite her treating physician requiring that she not carry heavy items on her back until further notice. This, she believes, aggravated the diagnosed “backpack paralysis” and caused further damage to her neck and shoulders. The Veteran explained she frequently sought treatment while in service and thereafter for her neck and shoulder conditions, but mainly self-treated with over-the-counter medicines not wanting to take “heavier drugs” because she is a mother and had additional ailments. Several VA examinations and opinions have been obtained to determine the etiology of the Veteran’s bilateral shoulder and cervical spine disabilities; however, these examinations were deemed inadequate in the Board’s prior remands. Upon further assessment, the Board agrees with the prior Boards’ opinions concerning the inadequacy of prior VA examinations. For the sake of brevity, the Board will briefly discuss the inadequacies of prior VA examinations. The November 2005 cervical spine opinion was based solely on factually incorrect information. The February 2009 cervical spine opinion provided a negative nexus but failed to provide a rationale. In February 2012, VA examiner opined that the Veteran’s cervical spine degenerative disc disease DDD was less likely than not related to service. He stated that there is no evidence in the Veteran’s service treatment records for cervical injury or complaint and that there is no relationship between cervical DDD and her service-connected back condition. The Board finds this opinion to be inadequate, because the examiner failed to address the Veteran’s contention that she has been experiencing neck pain since her 24 -hour guard duty in service. Further, the examiner failed to address whether the Veteran’s cervical disability is aggravated by the Veteran’s service-connected back condition. Moreover, the May 2016 and June 2016 opinions are inadequate for failure to comply with the Board’s June 2014 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the last remand request from the November 2018 Board, the Veteran was afforded examinations to determine whether her bilateral shoulder and neck disabilities are related to her service. Similarly, the Board finds the October 2019 and November 2019 opinions to be inadequate as the examiner failed to address the Veteran’s contention that she has experienced neck and shoulder pain, stiffness, and spasms since service. In determining whether the record reflects that the Veteran’s current cervical spine disability and bilateral shoulder disability are related to her service, the Board acknowledges the Veteran’s belief that there is such a causal connection as well as her own description of in-service incurrence of a cervical spine and bilateral shoulder disability. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is certainly competent to describe the circumstances of her military duties, the pain she felt during service, and the pain she felt since service. To that effect, the Board finds the Veteran’s testimony and lay statements to be both competent as well as probative as to whether continuity of symptomology has been present since service. The Veteran was competent to report the onset of neck and shoulder pain and stiffness; thus, the Board finds the Veteran’s reports are credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from 1984 to the present. The Veteran is competent to report that she experienced symptoms of neck pain, stiffness, and muscle spasms during that period but did not seek treatment because she was self-treating at home not wanting to risk being put on “heavier drugs.” Her statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. As explained above, VA examiners provided negative nexus opinions for the Veteran’s claimed conditions and these opinions have been considered. However, as also explained above, these opinions are considered inadequate for determination of service connection. Therefore, in view of this evidence, and resolving reasonable doubt in the Veteran’s favor, service connection for cervical spine and bilateral shoulder conditions are warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.