Citation Nr: 21022592 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-15 831A DATE: April 16, 2021 ORDER Entitlement to service connection for connection for left shoulder arthritis is granted. Entitlement to service connection for right upper extremity radiculopathy, secondary to a cervical spine arthritis, on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current left shoulder arthritis is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran’s right upper extremity radiculopathy was caused by the Veteran’s service-connected cervical spine arthritis. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left shoulder arthritis are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for radiculopathy of the right upper extremity, secondary to his service-connected cervical spine arthritis, on a causation basis, have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1966 to September 1968, including service in Vietnam. This case initially came to the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), denying, inter alia, the Veteran’s claim for entitlement to service connection for a left shoulder disability and right upper extremity radiculopathy as secondary to his service-connected cervical spine disability. The Veteran disagreed with the RO’s determinations and timely appealed. In July 2019, the Veteran testified before the undersigned Veteran’s Law judge at a videoconference hearing. The transcript has been associated with the record. In July 2019, the Board remanded the claims. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). While service connection is warranted where a current disability resulted from an injury or disease incurred in or aggravated by active military service, 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence ”shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). Entitlement to service connection for left shoulder arthritis. The Veteran contends that he incurred a left shoulder injury in service in January 1968. Specifically, the Veteran stated that he was guarding an ammunitions bunker that was blown up at the start of the Tet Offensive and he was thrown against the wall. The blast came from the left side, and he was thrown to the right, but he was not sure how he hit the wall. The Veteran’s May 1986 combat statement indicating that he was injured while on radio operation at the time of the Tet Offensive when there was an explosion that set fire to the ammunitions bunker is credible and consistent with the places, types, and circumstances of his service and reflects that he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Thus, as found by the Board in its July 2019, the Veteran engaged in combat with the enemy. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence ”shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). An October 2020 VA examination diagnosed the Veteran with degenerative arthritis in the left shoulder, thus meeting the first criterion for service connection. Further, as noted above, he had an in-service combat related left shoulder injury in 1968, when he hit the wall after an explosion set fire to the ammunition bunker during the Tet Offensive. Therefore, the Veteran’s claim turns on whether there is a nexus between the Veteran’s current left shoulder disability and his in-service left shoulder injury. A September 2015 private treatment note from Dr. M.P., indicated that the Veteran complained of pain since he was injured in an explosion in Vietnam. He reported pain and weakness which persisted even after undergoing an anterior cervical diskectomy and fusion performed in September 2015. In April 2015, a private treatment note by Dr. J.C., indicates the Veteran reported a history of neck discomfort and worsening of pain in neck, shoulder and arm. In a November 2020 VA exam, the examiner noted the Veteran reported pain in his left shoulder, which affected his range of motion (ROM). Diagnostic testing revealed objective evidence of pain on passive ROM testing and objective evidence of pain on non-weight bearing testing. X-rays revealed osteophytes indicative of arthritis and evidence of degenerative or traumatic arthritis in his left shoulder. However, the VA examiner found it was less likely than not that the Veteran’s left shoulder disability was incurred in or caused by military service. He stated that arthritis is common at the Veteran’s age. He noted that the Veteran has had an active lifestyle through retirement, engaging in hunting, and skiing and motorcycle riding. The examiner further opined that the Veteran’s left shoulder disability was less likely than not caused by his service-connected cervical neck disability. He concluded that his service-connected disability would not cause shoulder pain or a physical tear in his left rotator cuff. He determined there was no pathophysiology upon exam and no evidence of radiculopathy. A subsequent January 2021 VA examiner opinion supported the November 2020 findings, concluding that the Veteran’s left shoulder disability is less likely than not due to military service or aggravated by his service-connected cervical spine disability. The VA opinions are inadequate as they do not consider the medical evidence of record or the Veteran’s competent and credible lay statements of record pertaining to the continuity of symptomatology since the in-service injury. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Therefore, the opinions are of little, if any, probative weight. The Board notes that the Veteran is competent to report continuous shoulder pain during and since combat, he is credible in his assertions, and this evidence tends to show that his current left shoulder disability was incurred during his combat service. Reeves v. Shinseki, 682 F.3d at 999. Moreover, there is no evidence that explicitly contradicts the Veteran’s reports and his reports are generally consistent with the evidence of record. Given the Veteran’s combat service, the medical evidence of record, his credible and competent lay statements as to his left shoulder disability, the continuity of symptomatology, and the inadequate nexus opinions, the evidence supports service connection for left shoulder arthritis. Thus, the evidence is at least evenly balanced as to whether the Veteran’s left shoulder disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left shoulder arthritis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for right upper extremity radiculopathy secondary to cervical spine arthritis. The Veteran contends that he has experienced right arm nerve pain on and off since service, due to his service-connected cervical spine disability, and his symptoms have worsened throughout the years. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service). The Veteran is in receipt of service connection for cervical degenerative arthritis. The issue is therefore whether his cervical spine arthritis causes right upper extremity radiculopathy. On the recent October 2020 VA examination, the examiner found no pathology to render a diagnosis of radiculopathy. However, private treatment records from the appeal period including 2015 contain diagnosis of bilateral upper extremity radiculopathy. For example, an April 2015 private treatment note reflects electromyography (EMG) results denoting chronic radiculopathy. In January 2015, a private treatment record of Dr. M.P. indicated a diagnosis of worsening radiculopathy. An April 2015 private treatment note from Dr. D.W., indicated that imaging results showed right-sided degenerative facet arthrosis with associated bony hypertrophy, and a right-sided disk herniation at C6-C7, which may be compromising the exiting right C7 nerve root. The Veteran testified that, after surgery on his cervical spine in September 2015, he still continued to experience pain and tingling in his right hand. There is thus conflicting evidence as to whether the Veteran had right upper extremity radiculopathy during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right upper extremity radiculopathy, secondary to cervical spine arthritis, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. . Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. K. Donaldson, 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.