Citation Nr: 21022106 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-57 227 DATE: April 14, 2021 ORDER Entitlement to service connection for degenerative arthritis of the left shoulder, to include as secondary to service-connected limited motion of the cervical spine status post fracture, is granted. Entitlement to service connection for degenerative arthritis of the right shoulder, to include as secondary to service-connected limited motion of the cervical spine status post fracture, is granted. Entitlement to service connection for a right hip pain with functional impairment, to include as secondary to service-connected limited motion of the cervical spine status post fracture, is granted. Entitlement to service connection for right knee meniscal tear, to include as secondary to service-connected limited motion of the cervical spine status post fracture, is granted. FINDINGS OF FACT 1. The Veteran’s bilateral shoulder degenerative arthritis is at least as likely as not related to his 1997 injury in service. 2. The Veteran’s right hip pain with functional impairment is at least as likely as not related to his 1997 injury in service. 3. The Veteran’s right knee meniscal tear is at least as likely as not related to his 1997 injury in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the left shoulder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for entitlement to service connection for degenerative arthritis of the right shoulder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for entitlement to service connection for right hip pain with functional impairment have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for entitlement to service connection for right knee meniscal tear have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from January 1980 to January 1990 and March 1991 to January 2001. In March 2021, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. Service Connection Direct service connection generally requires evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). On June 14, 2019, the Court issued the precedential decision in Ward v. Wilkie, 17-1204, holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Notably, in this case, the evidence does not show that the Veteran has the medical background necessary to competently identify or opine regarding symptoms or diagnoses that are not lay observable; however, the Veteran, as a layperson, is competent to identify or opine regarding any lay-observable symptoms or diagnoses. Jandreau, supra; Layno, supra. 1. Entitlement to service connection for a left shoulder condition The Veteran generally contends that his bilateral shoulder, right hip, and right knee conditions were at least as likely as not caused or aggravated by his service and/or secondary to his service-connected limited motion of the cervical spine status post fracture. See May 2015 Codesheet; March 2021 Board Hearing transcript. Specifically, the Veteran attributes his bilateral shoulder, right hip, and right knee conditions to the November 1997 car accident that caused his service-connected neck condition; he further contends that his service-connected neck condition may have caused range of motion issues with the right hip and shoulders. See March 2021 Board Hearing transcript. The January 1980 enlistment examination documented, in pertinent part: upper extremities normal; lower extremities normal; spine and other musculoskeletal normal; no swollen or painful joints; no broken bones; no arthritis, rheumatism, bursitis; no bone joint or other deformity; no painful or trick shoulder or elbow; no recurrent back pain; and no trick or locked knee. A March 28, 1985, treatment record documented: painful, cramping, locking up of both knees; the Veteran had a similar problem on and off since last summer; increased pain, especially with sports, running, football; no history of trauma or minor sprains from sports; and an assessment of patellofemoral pain syndrome in the bilateral knees. A March 28, 1985, physical therapy consultation documented: pain and crepitus in the bilateral knees; and a diagnosis of chondromalacia patellae (CMP) of the bilateral knees. A March 28, 1985, x-ray of the bilateral knees showed no significant abnormalities. An April 11, 1985, treatment record documented that his knees were better and he had been discharged from physical therapy. The February 1986 periodic physical examination documented, in pertinent part: upper extremities normal; lower extremities normal; and spine and other musculoskeletal normal. A February 1990 enlistment examination documented, in pertinent part: upper extremities normal; lower extremities normal; spine and other musculoskeletal normal; no broken bones; no recurrent back pain; no swollen or painful joints; no arthritis, rheumatism, bursitis; no painful or trick shoulder or elbow; and no trick or locked knee. A January 1991 ARG Title 32 examination documented, in pertinent part: upper extremities normal; lower extremities normal; spine and other musculoskeletal normal; no broken bones; no recurrent back pain; no swollen or painful joints; no arthritis, rheumatism, bursitis; no painful or trick shoulder or elbow; and no trick or locked knee. An October 1995 periodic examination documented, in pertinent part: upper extremities normal; lower extremities normal; spine and other musculoskeletal normal; no broken bones; no recurrent back pain; no swollen or painful joints; no arthritis, rheumatism, bursitis; no painful or trick shoulder or elbow; and no trick or locked knee. A December 2, 1997, treatment record documented that the Veteran was: hit by a car on November 28, 1997; diagnosed with a cervical spine fracture; and taking pain medication. An October 2000 periodic examination documented, in pertinent part: upper extremities normal; lower extremities normal; spine and other musculoskeletal normal; broken bones and recurrent back pain; no swollen or painful joints; no arthritis, rheumatism, bursitis; no painful or trick shoulder or elbow; no trick or locked knee; and history of examination in 1997 after being struck by a car. February 2014 and July 2014 treatment records from Ireland ACH Fort Knox document the Veteran’s reports of continued pain in his neck, hip, knee, and shoulders, which the Veteran contended were attributable to being hit by the car in 1997. In an August 2014 VA Form 21-526EZ, the Veteran contended that all the disabilities herein may be secondary to his service-connected cervical spine disability. During the April 2015 VA knee and lower leg conditions examination, the Veteran reported, in pertinent part, that: he injured his right knee when he was struck by the car in 1997 (it was sore, swelled, and had pain in the posterior knee and around the knee cap, which limited his ability to run); he had no subsequent injury to that knee; his knee symptoms have continued to worsen since the injury; he found out he had a meniscal tear after a July 2014 MRI; and the knee symptoms continue to result in functional limitation (pain that flares-up, limited squatting, limited walking, limited sitting, decreased range of motion in the knee and hip during flare-ups). During the April 2015 VA shoulder and arm conditions examination, the Veteran reported, in pertinent part, that: he injured his shoulders when he was struck by the car in 1997 (resulting in pain that had become more constant in the last few years and shooting pains down the arms with numbness, which limit his ability to hold things, reach, and complete repetitive movements); his shoulder symptoms have continued to worsen since the injury; and his shoulder symptoms continue to result in functional limitation. During the April 2015 VA hip and thigh conditions examination, the Veteran reported, in pertinent part, that: he injured his right hip when he was struck on his right side by the car in 1997 (resulting in pain in the right side of his lower back shooting into his right hip and resulting in functional loss); although the providers focused their attention on his broken neck after the crash, the Veteran also had other pains throughout his body; his right hip symptoms have continued to worsen since the injury; and his right hip symptoms continue to result in functional limitation (limited laying on hip, sitting, walking, ability to perform yardwork, and ability to use stairs). In the August 2015 VA etiological opinion, the examiner opined that all the disabilities herein were less likely than not secondary to the Veteran’s service-connected cervical spine disability; notably, the examiner failed to provide an opinion regarding whether the disabilities herein were etiologically related to service on a direct basis, making it inadequate in that regard. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Further, the rationale for supporting the secondary opinion is also inadequate because the examiner merely stated that: the cervical spine disability “would not affect” the disabilities herein (without providing any rationale as to why); service records did not document pertinent abnormalities (which is not required to grant service connection); and there is no evidence of pertinent symptoms until 2014 (which disregards the Veteran’s competent statements regarding ongoing, lay-observable symptoms since the 1997 injury). Barr, supra; Jandreau, supra; Layno, supra. In the November 2016 VA Form 9, the Veteran reported that: during the 1997 car accident, he was struck on the right side and thrown over the top of the car; only his neck was examined after the injury; since the injury, he has had consistent and increasing pain in his shoulders, right hip, and right knee; and his symptoms were not documented in medical records until after 2011 when he became a GS employee and received better healthcare through providers at Fort Knox. During the March 2021 Board hearing, the Veteran testified that: when he was struck by the car in 1997, he landed on his knees and hands; when he was evaluated at the hospital post-accident, he had severe swelling in his neck area, shoulders, hip, and knee (so much so that the providers could not get a clear visual of his spine or extremities via x-ray due to the inflammation); since the injury, he has had continuous symptoms (continuous pain, constant swelling, limited range of motion, and other functional loss) and has continuously sought medical treatment (while working at the Air National Guard, he sought treatment at an on-base clinic, but, outside of work hours, he sought treatment from a civilian provider); he continues to take daily medication for total body pain and sometimes has flare-ups of severe pain in his joints; his service-connected cervical spine disability may also have caused range of motion issues with his hip and shoulder; and he did not have any accidents or injuries that could have caused the disabilities herein subsequent to the 1997 injury. Based on the evidence above, the Board resolves reasonable doubt in the Veteran’s favor to find that his bilateral shoulder, right hip, and right knee conditions are at least as likely as not related to his 1997 injury in service. Specifically, the Veteran is competent to report onset of pain, swelling, and range of motion loss because those symptoms are lay observable through his senses; also, his reports of onset and continuous symptoms have remained consistent throughout the record, making them credible and, thus, probative. Jandreau, supra; Layno, supra. Additionally, the Veteran has competently and consistently reported that he has both self-treated the pain over the years through pain medication and rest, and that he also sought continuous treatment from his work clinic and a civilian provider, which the Board finds no reason to doubt. Accordingly, because the Veteran did not have any pertinent abnormalities upon entrance and experienced an in-service injury and onset of symptoms with functional loss that have remained consistent since the injury, the Board finds that etiology has been established through his probative lay statements of chronicity and continuity of symptomatology. 38 C.F.R. § 3.303(b). Thus, service connection is warranted and the Board grants the claims. 2. Entitlement to service connection for a right shoulder condition This issue is granted for the same reasons and bases discussed above. 3. Entitlement to service connection for a right hip condition This issue is granted for the same reasons and bases discussed above. 4. Entitlement to service connection for a right knee condition This issue is granted for the same reasons and bases discussed above. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.