Citation Nr: 21015877 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-12 650 DATE: March 18, 2021 ORDER Entitlement to service connection for a right shoulder disorder is granted. Entitlement to service connection for a neck disorder is denied. REMANDED Entitlement to service connection for a bilateral knee disorder is remanded. FINDINGS OF FACT 1. Records surrounding a fall in 2003 include a history of the Veteran’s service connected right foot/ankle giving way; shoulder problems have been demonstrated since the fall, which it appears, was as likely as not caused by the service connected right foot/ankle disorder. 2. The evidence does not support a finding that the Veteran’s a neck disorder began during active service or is otherwise related to or aggravated by an in-service injury or disease. The Veteran’s arthritis did not manifest to a compensable degree during the one-year period following the discharge from service. Neck problems are not shown related to or aggravated by a service connected disorder. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for service connection for a right shoulder disorder are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a neck disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to November 1971 and from August 1973 to August 1977. In July 2020, the Board most recently remanded these issues for additional development. The Board finds that there was substantial compliance with the remand directives for the right shoulder and neck issues on appeal as discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further development for the Veteran’s bilateral knee disorder will discussed in the remand below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information lay and medical evidence of record in a case and 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. 38U.S.C. §5107 (2012); 38C.F.R. §3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is on the list of diseases presumed to have been incurred in-service and receives a one-year presumption. Service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a right shoulder disorder. The Veteran contends that his service-connected right foot disability caused him to fall and injure his right shoulder. The Veteran’s service treatment records (STRs) do not reveal any complaints, diagnosis, or treatments for a right shoulder injury in-service. At his separation examination, the Veteran did not report, nor did the examiner diagnose any joint pain, deformity, or arthritis of the right shoulder. The Board acknowledges that the Veteran has received treatment for his right shoulder disability. The Veteran’s private medical records document that he injured his right shoulder after a fall in 2003 and later had surgery to repair a torn rotator cuff in March 2004. Significantly records from late 2003 and early 2004, at the time of the incident, reveal that the Veteran reported that his right foot/ ankle gave way, or would not support him as he tried to stand, causing the fall. The record before the fall reveals multiple surgeries to the foot/ankle, with only limited success in resolving problems with the lower extremity. An altered gait was noted on occasion. The Board is aware of the negative opinion recently received. The examiner however, indicated that there was a pre-service disorder, but that finding did not go with the entered rationale. The history of the injury was reported, but there was no analysis of the records proximate to the event. As such, the Board does not find that examination persuasive. Longitudinal review of the current record reveals a pertinent history at the time of the fall in 2003. As such, resolving reasonable doubt in the Veteran’s favor, the Board concludes that secondary service connection for the right shoulder disorder is warranted. 2. Entitlement to service connection for a neck disorder. The Veteran contends that his neck disability is secondary to his service-connected lumbar spine disability and/or right foot disability. After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran’s claim. The Veteran’s STRs do not reveal any complaints, diagnosis, or treatments for a neck injury in-service. At his separation examination, the Veteran did not report, nor did the examiner diagnose any cervical strain, pain, deformity, or arthritis of the neck. The Board acknowledges that the Veteran has received both VA and private treatment for his back and neck. A December 1988 record showed that his cervical symptoms were mild and intermittent or occasional and minimal. Additional records from 2001 show neck pain with an assessment of neck strain. A July 2001 cervical X-ray noted degenerative disc disease seen at C5-6 and C6-7, with space narrowing and osteophyte formation present. Private medical reports indicate that the Veteran continues to receive treatment for his back and neck problems. The Veteran was afforded a VA examination for his cervical spine in August 2016. The Veteran reported that his neck pain began in the 1980s, with pain when he turns to the right side. He stated that he takes Aleve for pain. After a review of the Veteran’s electronic claims file, the examiner provided a diagnosis of degenerative arthritis of the spine, dated 2001. The examiner opined that the Veteran’s cervical spine disability is not directly related to service. He explained that Veteran does have a diagnosis of cervical spine disability, but it is less likely as not incurred in or caused during service. Records show neck pain in 1988, which is over 5 years after service. After 1988, no notes of neck pain until 2001, where DDD is noted. All of these instances are post military service. Therefore, it is assumed that his cervical pain is not related to service and due to aging and post service occupations and entities. The examiner further opined that it is less likely as not that the Veteran has a current cervical spine disability that was caused by his service-connected lumbar spine and/or right foot disabilities, to include as a result of an altered gait. He explained that current evidence today does not support a direct causation of his cervical spine condition due to his lumbar spine and/or right foot disabilities, to include as a result of an altered gait. It is assumed that his cervical spine is due to aging and post service occupations and entities. The examiner also opined that it is less likely as not that the Veteran has a current cervical spine disability that was aggravated beyond the natural progression by his service-connected lumbar spine and/or right foot disabilities, to include as a result of an altered gait. Current evidence today does not support a direct causation or aggravation of his cervical spine condition due to his lumbar spine and/or right foot disabilities, to include as a result of an altered gait. It is assumed that his cervical spine is due to aging and post service occupations and entities. In an October 2020 VA neck examination, the examiner diagnosed the Veteran with degenerative arthritis of the spine. The examiner opined that the Veteran’s neck disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected disorders. The examiner also opined that the Veteran’s neck disorder is less likely than not incurred or caused by his knee disorder. The examiner noted that the Veteran’s STRs are silent regarding complaints of neck pain or treatment for neck pain during his time of service. The examiner also noted that the Veteran’s record shows chronic degenerative disc disease which is caused by aging, not trauma or injury. Lastly the examiner determined that there is no known correlation between degenerative cervical disc disease and a knee pathology. To summarize the Veteran’s STRs do not reveal any complaints, diagnosis, or treatments for a neck disorder. Furthermore, there is also no indication of any complaints or treatments for any neck disorders related to service or for several years post-service. See Mason v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). This premise is further evidenced by the fact that the Veteran did not submit a compensation and pension application for his service-related neck disorder until many years after separation from service. In fact, the initial claim for disability compensation did not include reference to the neck disorder. The Board also reviewed the Veteran’s lay statements and Appellate Brief that the onset of his neck disorder is related to his time in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a neck disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the foregoing summary of the treatment record reveals no possibility for service connection for a neck disorder on a direct basis or secondary basis. As indicated above, the Veteran’s STRs do not report any findings of treatment for a neck disorder. Furthermore, the Board acknowledges the most recent October 2020 VA neck examination. The examiner noted that the Veteran’s STRs are silent regarding complaints of neck pain or treatment for neck pain during his time of service. The examiner also noted that the Veteran’s record shows chronic degenerative disc disease which is caused by aging, not trauma or injury. Lastly the examiner determined that there is no known correlation between degenerative cervical disc disease and a knee pathology. The examiner opined that the Veteran’s neck disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected disorders. The examiner also opined that the Veteran’s neck disorder is less likely than not incurred or caused by his knee disorder. As a pathology for the onset of a neck disorder has not been shown to be related to the Veteran’s time in-service, the Board concludes that the clinical evidence does not support the Veteran’s contentions for a granting of service connection on a direct or secondary basis. REASONS FOR REMAND Entitlement to service connection for a bilateral knee disorder is remanded. In an October 2020 VA knee examination, the examiner diagnosed the Veteran with bilateral osteoarthritis of the knees. Pain of the knees bilaterally not relating in functional loss was diagnosed. The examiner opined that the Veteran’s right knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran’s right knee disorder “manifested in service or is otherwise causally or etiologically related to his military service, or is less likely as not due to or caused by his service connected disorders”. Given the other comments on the report, this may be a typographic error with a missing “not,” but the record must be clarified prior to proceeding. Further, a more detailed rationale is requested as to secondary service connection, to include whether the service connected foot/ankle pathology and or the back disorder resulted in altered gait such as to cause or aggravate the knee disorders. The matters are REMANDED for the following action: Return the records to the prior examiner, or a similarly qualified examiner for an addendum opinion. The examiner must be given access to all records contained in Virtual VA and VBMS, and a notation must be made that review of all records has been accomplished. After a thorough review of the medical history, the examiner is requested to prepare a detailed opinion which answers the following question to clarify the recorded opinion noted above: Is it at least as likely as not (50 percent or greater probability) that the onset of the Veteran’s reported right and left knee disorder is related to or aggravated by an in-service event or occurrence? In the alternative, the examiner should offer a complete medical rationale as to whether the pathology of either knee is proximately due to, the result of, or aggravated by the service connected low back and/or foot/ankle disorder. This should include a discussion of whether gait impairment is present and if so, whether it contributed in any way to the bilateral knee impairment. Please provide a complete rationale for all opinions entered and review the entire record including lay statements. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.