Citation Nr: 21025190 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-53 810 DATE: April 27, 2021 ORDER Service connection for degenerative arthritis of the lumbosacral spine is granted. REMANDED Entitlement to service connection for right hip degenerative arthritis is remanded. Entitlement to service connection for left hip degenerative arthritis is remanded. Entitlement to service connection for left shoulder condition is remanded. Entitlement to service connection for right shoulder impingement syndrome is remanded. FINDING OF FACT The evidence of record supports a finding that the Veteran’s currently-diagnosed degenerative arthritis of the lumbosacral spine is the result of his active service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the lumbosacral spine have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1968 to July 1972. At a December 2020 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran has contended that his currently-diagnosed lumbosacral spine degenerative arthritis is the result of his active service, specifically to include an injury that occurred in August 1970 and participation in football games. 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; 38 C.F.R. § 3.303(a). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Turning to the evidence of record, the Veteran’s service treatment records (STRs) contained several relevant notations. In July 1968, clinicians observed lordosis in the spine. In October 1968, an examination of the spine was normal, and the Veteran denied recurrent back pain on a report of medical history. In August 1970, he reported lower back pain and muscle spasms. In September 1970, he again experienced pain in the lower back. No muscle tension was observed by clinicians. Later that month, the Veteran reported low back pain which was non-radicular and resulted in no paresthesias, limp, hip pain, or groin pain. Upon examination, he was acutely tender over the lumbosacral spine area. Bilateral paralumbar muscle spasms were observed. Flexion was full and rotation of the trunk and hips was normal. There was no muscle weakness or atrophy. An x-ray was obtained which had negative results. Clinicians prescribed heat, correct body posture, a bed board, and medications. The Veteran was given a profile of no duty for 36 hours and light duty for 10 days. At a follow-up appointment, he stated that his back felt much improved. The Veteran’s June 1972 separation examination reflected a normal spine evaluation. Post-service, a December 2007 x-ray of the lumbar spine conducted following a slip down steps demonstrated diffuse degenerative changes involving the lumbar spine most pronounced at the L5-S1 level and no acute fracture. In an October 2015 VA treatment record, it was noted that the Veteran’s back had no tenderness. In November 2015, he described chronic low back pain with occasional radicular symptoms into the left leg. The Veteran underwent a VA examination in December 2015. An x-ray demonstrated moderate degenerative arthritic changes of the lower lumbar spine. The Veteran reported that in service he stepped four feet down from the wing of an aircraft to the ground, experiencing a sudden jolt of pain in his low back. He was on bed rest for several weeks because of back pain but returned to regular duty for the final four months of his service in Vietnam. During his final two years in service, he played on a football team, winning the championship for the Marines on the East Coast. He did not recall a major back injury, event, or treatment during his final two years in service. Post-service the Veteran did not have an injury, event, or treatment for his back until 1977 when he was laying on the floor due to an episode of back pain. He subsequently had episodes of low back pain every 1 to 5 years. His back pain increased in severity over the past three years. The examiner determined that it was less likely than not that the Veteran’s currently diagnosed back condition was incurred in or was caused by service. In support, he stated that it would be speculation to identify ongoing back pathology resulting from the military, as the Veteran was able to successfully play on the championship football team his final two seasons in service. There was no report of back problems until the episode of back pain in 1977, three years after discharge. At the December 2020 hearing, the Veteran testified that his first injury to his back occurred in 1970 while stationed in Da Nang. He stated that he jumped down 4 to 5 feet off an aircraft wing down the back side, over the flaps. When he hit the deck, he had a sharp, sudden back pain and fell to his knees. He needed to get up and out of the way because the plane was launching but he had a difficult time moving at the time and he later sought care. The Veteran stated that his service separation examination was not a full physical examination that addressed musculoskeletal issues but was instead just a cursory evaluation. The Veteran further testified that after service, he did not seek medical treatment for his back pain. He treated himself, as he had learned to do while in Vietnam. He experienced an incident in 1976 when he was washing dishes and suddenly sneezed. He had sudden back pain and fell to his knees. The Veteran is a physical therapist and contended that he believed he went into a scoliotic protective shift and was locked into the position and could not move. At the time he was attending physical therapy school and his instructors helped treat him. The Veteran stated that he first became aware of the ability to make a claim for his disability in 2015 when he stopped active employment, lost his insurance, and sought VA care. He discussed the previous denial of his service connection claims and gave his opinion as a physical therapist that the assumption that tissues heal after injury and are no longer a problem is not consistent with the way the body works. Pain science demonstrates that if you contuse in-bearing tissues in a joint and do it with enough force, there will be some degradation over time, and you end up with degenerative changes. The Veteran further testified that he had frequent episodes of back pain over the years but that he would treat himself or receive treatment from colleagues. His former classmates, his wife, and his son could attest to his ongoing problems over the years. In December 2020, a colleague of the Veteran’s, who attended physical therapy school with him, submitted a letter. He stated that the Veteran had described his in-service back injury to him while they attended school from 1975 to 1977 and also related multiple “back attacks” occurring each year following that incident, most of which were unprovoked and without discernable cause. They resulted in severe back spasms twisting his spine (likely protective scoliosis), periods of immobility, and extreme pain. He noted that during their classes, the Veteran would sit in the last row of the classroom so that he could stand frequently and walk a few steps so that he could decrease the pain of prolonged sitting. The colleague described the incident in 1976 when the Veteran sneezed and ended up immobile and in severe pain for several weeks. He stated that the extreme symptoms secondary to such a simple act as sneezing they came to appreciate as part of their clinical academic work was as likely as not due to a combination of insufficiently stable spinal segment(s), a flexed posture, and subsequent increased intraabdominal and intradiscal pressures thus affecting the compromised disc-neural relationships of the spinal segments. The colleague found the Veteran on his back on the floor with his legs elevated (the most consistent, safe, and pain-relieving position possible) when he brought him class notes to study. He stated that the Veteran subsequently would continue to have spine pain and restrictive activity 3 to 4 times per year. In January 2021, the Veteran’s wife submitted a statement as well. She noted that he wrote her in 1970, describing the incident jumping down from a plane in Da Nang. Over the years, he experienced back attacks where he would be in a horrendous-looking posture due to pain. After prolonged sitting, he would need to walk his hands up his thighs to be able to stand. She described several incidents that occurred, including difficulty driving home after separation, the onset of back pain after the sneeze while in school, and an episode in the late 1980s when he had to be transported on a mattress in the back of a pickup truck to the emergency room where he received spinal injections and traction. The Veteran’s wife confirmed that he was able to get through most of these episodes of back pain by using self-care physical therapy, ibuprofen, and occasional steroid tapers prescribed by clinicians with whom he worked. Also in January 2021, an orthopedic surgeon (the Veteran’s son) submitted a private medical opinion. He noted that he had reviewed the Veteran’s STRs, private medical records, and VA treatment records. He discussed the Veteran’s military experience including playing full-contact football and softball for the Marine Corps and a 13-month deployment to Chu Lai and Da Nang during the Vietnam War entailing aircraft maintenance duties that required running and jumping on concrete. He noted the Veteran’s reported back injury when jumping off of a jet fighter wing on the flight deck. The clinician stated that in the 1980s, he personally observed the Veteran self-treating with traction and self-mobilization of the spine using his physical therapist training. He practiced work simplification, positioning on the floor and in bed during acute episodes, avoiding sitting, and stopping the car frequently to unload his back. The clinician stated that the Veteran sought his advice over the years regarding his ongoing spine pain, including dosing of non-steroidal and steroid-based anti-inflammatory medications. The clinician determined that the Veteran’s low back and leg pain due to spinal degenerative disc disease, intervertebral foraminal stenosis, spondylosis, and degenerative disc disease was more likely than not a direct result of the back injury from jumping off of aircraft in Da Nang. In support, he stated that in his personal experience as a trained orthopedic surgeon, as well as in the medical literature, signal injury events with sufficient force or exposure of joint surfaces to repeated force loads will degrade articular surfaces leading to degenerative changes. Regarding the spine, there was solid evidence in the literature that a signal event could result in a pathological cascade over the life of an injured intervertebral segment as well as segments above and below it due to persistent degeneration of damaged disc and facet joint tissues. Service connection for degenerative arthritis of the lumbosacral spine is granted. Based on the foregoing, the Board finds that service connection for degenerative arthritis of the lumbosacral spine is warranted. The Board notes at the outset that the Veteran’s medical experience and training as a physical therapist affords him a heightened level of competence regarding his claimed disability. Complaints of pain in the lumbar spine and a prescribed profile are documented in the STRs. The Veteran has credibly described an in-service incident which caused his back symptomology. Although the separation examination did not reflect ongoing spinal issues, the Veteran has testified that it was not a comprehensive examination which evaluated musculoskeletal issues. Although post-service treatment records did not reflect lumbar spine complaints until 2007, the Veteran and his wife have credibly described ongoing “back attacks” and incidents of chronic pain following separation which he self-treated, particularly because he was a trained physical therapist. The Veteran’s description of a serious incident in 1976 was confirmed by a colleague who witnessed his symptoms and provided a medical context for his presentation. The Veteran’s son also described his ongoing symptoms and how he treated his pain himself. His son, an orthopedic surgeon, determined that the current back disability was more likely than not the result of the incident which occurred in Da Nang. He supported this opinion with an adequate medical rationale. The Board attaches more probative value to the orthopedic surgeon’s opinion than the VA opinion as it well-reasoned, consistent with other evidence of record, included consideration of the Veteran’s pertinent medical history and established medical literature, and included the clinician’s own observations of his condition over the years whereas the VA opinion merely determined that it would be speculation to identify ongoing back pathology resulting from the military. As there is competent and credible evidence of an in-service incident, ongoing symptomology, a current diagnosis, and a supported medical opinion providing a positive nexus to service, service connection for degenerative arthritis of the lumbosacral spine is warranted. REASONS FOR REMAND The Veteran has contended that bilateral hip and shoulder disabilities are the result of his active service. The Board finds that additional development is needed before a decision may be rendered on the claims. VA treatment records in the claims file date only to August 2017. As such, upon remand, recent outstanding VA treatment records should be obtained and associated with the claims file. 1. Entitlement to service connection for right hip degenerative arthritis is remanded. 2. Entitlement to service connection for left hip degenerative arthritis is remanded. The Veteran’s STRs did not contain any complaints, symptoms, treatment, or diagnosis of right or left hip conditions. The June 1972 separation examination reflected a normal evaluation of the lower extremities. Post-service, pain in the bilateral hips was first noted in the claims file in a November 2015 VA treatment record. A clinician noted that left hip pain was secondary to a labral cyst. Degenerative arthritis was diagnosed in the bilateral hips. The Veteran underwent a VA examination in December 2015. He reported getting right hip pain around 2008 to 2009 with a gradual onset and left hip pain for several years. X-rays revealed mild arthritic change. The examiner determined that it was less likely than not that the Veteran’s currently diagnosed bilateral hip condition was incurred in or caused by his active service. In support, he stated that it would be speculation to attribute his hip condition to service because of the lack of hip problems before 2008 to 2009 and no hip injuries noted in service. The Veteran was able to play on a championship football team without hip problems during the last years of his service. The Veteran testified at the December 2020 hearing that he began having problems with his hips in service when playing football. He described self-treating his pain symptoms for many years. In January 2021, the Veteran’s wife submitted a statement which noted that he had complaints in his hips along with his back pain when he stayed on his feet too long following the 1970 in-service back injury. During his “back attacks,” his hips would shift off to one side. She noted that he had hip pain consistently since he had had back episodes. A medical opinion was provided by a private orthopedic surgeon (the Veteran’s son) in January 2021. The clinician determined that osteoarthritis with acetabular subchondral sclerosis in the right hip was more likely than not the direct result of the same event of the back injury in service, in addition to the ongoing forces generated into the joint from pounding concrete tarmac in Chu Lai and Da Nang. Osteoarthritis was more likely than not the result of the ongoing forces generated into the joint from pounding concrete tarmac in Chu Lai and Da Nang. In support, the clinician stated that signal injury events with sufficient force or exposure of joint surfaces to repeated force loads will degrade articular surfaces leading to degenerative changes. Based on the foregoing, the Board finds that a new VA examination and opinion are needed to determine the etiology of the Veteran’s currently diagnosed bilateral hip disabilities. Although the January 2021 statement provided a positive nexus opinion, the clinician did not provide an adequate rationale to support service connection. The clinician did not address the lack of notation in service of hip involvement following the 1970 back injury nor the fact that the Veteran reported that hip symptoms began several years later, following football games. Further, the clinician provided a medical statement regarding degenerative changes but did not discuss that statement in terms of the Veteran’s particular medical history. As such, a new medical opinion is needed which considers the Veteran’s medical history, lay statements, and the diverging opinions of record. Further, as there have been suggestions that the hip pain is associated with the service-connected back disability, an opinion regarding a secondary theory of causation is also needed. 3. Entitlement to service connection for left shoulder condition is remanded. In an August 1971 STR, the Veteran complained of pain in his left shoulder due to landing on it during an agility drill/playing football. He had full range of motion with no loss of strength and no evidence of fracture, dislocation, or separation. He was advised to use local heat. At a follow-up appointment the next day, his left shoulder girdle muscles were taut. He had full range of motion but pain on extension and flexion. An x-ray revealed no fracture or separation. The impression was a strain and heat and pain medication were prescribed. He was given light duty. The June 1972 separation examination reflected a normal evaluation of the upper extremities. A VA examination was conducted in December 2015. The examiner determined that there was no diagnosis or significant pathology or impairment of the left shoulder. The Veteran reported injuring his left shoulder while tackling during football during his final two years of service. An x-ray revealed an essentially normal shoulder for the Veteran’s age. The examiner concluded that it was less likely than not that the Veteran had a currently diagnosable left shoulder condition incurred in service. In support, he stated that he was able to return to play on the championship football team during his final two years of service and had no current pathology. A December 2016 VA treatment record reflected a diagnosis of degenerative arthritis in the shoulders. At the December 2020 hearing, the Veteran stated that he began having problems with his shoulders following playing football in-service. In a January 2021 statement, the Veteran’s wife also indicated that he began having shoulder issues when playing football. A medical opinion was provided by a private orthopedic surgeon (the Veteran’s son) in January 2021. The clinician determined that left shoulder pain and osteoarthritis was more likely than not the direct result of the August 1971 injury while playing football. In support he stated that signal injury events with sufficient force or exposure of joint surfaces to repeated force loads will degrade articular surfaces leading to degenerative changes. The Board finds that a new VA examination and opinion are needed to determine the etiology of the Veteran’s left shoulder condition. Although the January 2021 statement provided a positive nexus opinion, the clinician did not provide an adequate rationale to support service connection. The clinician provided a medical statement regarding degenerative changes but did not discuss that statement in terms of the Veteran’s particular medical history nor did the clinician address the VA examiner’s determination that degenerative changes in the left shoulder were consistent with his age. As such, a new medical opinion is needed which considers the Veteran’s medical history, lay statements, and the diverging opinions of record. 4. Entitlement to service connection for right shoulder impingement syndrome is remanded. On his service enlistment report of medical history, the Veteran noted a painful or trick shoulder. He clarified that he had separated his right shoulder in November 1967. The examiner noted that he currently had pain in the shoulder when he put pressure on it, for example with weight-lifting. In June 1972, the Veteran reported that he hurt his shoulder when playing football. He had a tender area at the mid-line shoulder bone, limited range of motion with discomfort, pain in movement of his neck to the right side, and a bruise. He was prescribed aspirin, a hot soak, exercises, and light duty for 14 days. The June 1972 separation examination reflected a normal evaluation of the upper extremities. Post-service, the Veteran underwent a VA examination in December 2015. The examiner diagnosed right shoulder impingement syndrome. X-rays revealed evidence of an old injury to the distal clavicle and mild degenerative changes consistent with age. The Veteran described injuring his right shoulder while tackling in football during his final two years of service, but he was able to play in the championship game. He described increased right shoulder discomfort for the past 6 years. The examiner concluded that the Veteran clearly and unmistakably had a right shoulder injury and problem existing prior to service. He determined that it would be speculation to determine whether the right shoulder was aggravated beyond its natural progress by service. He was able to play football during his final two years of service and had no record or indication of articular damage to the right shoulder during service. At the December 2020 hearing, the Veteran stated that the injury prior to service was a sternoclavicular separation. During service, he was engaging in a kickoff return during a football game and was struck, injuring his right shoulder. He described the injury as occurring to the acromioclavicular (AC) joint, rather than the sternoclavicular joint. He contended that the pre-service injury should not have generated a degenerative change in the glenohumeral joint, which is what was evident on recent x-ray. A medical opinion was provided by a private orthopedic surgeon (the Veteran’s son) in January 2021. The clinician determined that right shoulder pain and osteoarthritis with subchondral cyst of the greater tuberosity of the humerus was more likely than not the direct result of an in-service throwing injury in May 1971. In support, he stated that signal injury events with sufficient force or exposure of joint surfaces to repeated force loads will degrade articular surfaces leading to degenerative changes. The Board finds that a new VA examination and opinion are needed to determine the etiology of the Veteran’s right shoulder condition. Although the January 2021 statement provided a positive nexus opinion, the clinician did not address the preexisting shoulder injury or provide an adequate rationale to support service connection. The clinician provided a medical statement regarding degenerative changes but did not discuss that statement in terms of the Veteran’s particular medical history. As such, a new medical opinion is needed which considers the Veteran’s medical history, lay statements, and the diverging opinions of record. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file relevant and outstanding records of VA treatment from August 2017 to the present. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the etiology of his right and left hip degenerative arthritis. The claims folder should be provided to and reviewed by the examiner. (a.) After a review of the examination findings and the entire evidence of record, the examiner is asked to render an opinion as to whether the Veteran’s right and left hip degenerative arthritis is at least as likely as not (probability of 50 percent or greater) the result of his active service, specifically to include the 1970 back injury and football games; and (b.) The examiner is asked to render an opinion as to whether the Veteran’s right and left hip degenerative arthritis is at least as likely as not (probability of 50 percent or greater) proximately caused or aggravated (i.e., worsened beyond natural progression) by his service-connected lumbar spine disability. If aggravation is found, the examiner should quantify the degree of such aggravation, if possible. (c.) The examiner is reminded that a lack of post-service treatment records should not form the sole basis of any opinion, as the Veteran has competently and credibly testified that he self-treated his symptoms according to his physical therapy training. (d.) A full rationale for all opinions expressed should be provided. Special attention is directed to the Veteran’s lay statements regarding the onset of symptoms and his current complaints. The examiner is asked to specifically address the December 2015 VA examination opinion and the January 2021 private opinion and to reconcile any different conclusions with those opinions. 3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the etiology of his right and left shoulder disabilities. The claims folder should be provided to and reviewed by the examiner. (a.) After a review of the examination findings and the entire evidence of record, the examiner is asked to render an opinion as to whether the Veteran’s left shoulder condition is at least as likely as not (probability of 50 percent or greater) the result of his active service, specifically to include participation in football games and the August 1971 notation. (b.) Determine whether any right shoulder condition clearly and unmistakably preexisted the Veteran’s active service, and if so, whether any such disorder was clearly and unmistakably not aggravated (not increased in severity beyond its natural progression) during service. (c.) Determine whether any pre-service disability produced a subsequent disorder, which first was manifested during a period of service. (d.) If it is determined that the Veteran’s right shoulder condition did not preexist service and/or was not aggravated in service, determine whether it is at least as likely as not (probability of 50 percent or better) that such current disability had its onset during service or is otherwise the result of a disease or injury during service, specifically to include participation in football games and the June 1972 injury. (e.) The examiner is reminded that a lack of post-service treatment records should not form the sole basis of any opinion, as the Veteran has competently and credibly testified that he self-treated his symptoms according to his physical therapy training. (f.) A full rationale for all opinions expressed should be provided. Special attention is directed to the Veteran’s lay statements regarding the onset of symptoms and his current complaints. The examiner is asked to specifically address the December 2015 VA examination opinion and the January 2021 private opinion and to reconcile any different conclusions with those opinions, particularly to include whether degenerative arthritis is the result of age-related changes or in-service events. Special attention is also directed to the Veteran’s December 2020 testimony regarding his pre-service injury. 4. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.