Citation Nr: 21026326 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-54 424 DATE: April 30, 2021 ORDER The appeal pertaining to the issue of entitlement to service connection for a right hand disorder is dismissed. Service connection for degenerative joint disease of the cervical spine is granted. REMANDED Entitlement to service connection for a right shoulder disorder, to include as secondary to service-connected degenerative joint disease of the cervical spine, is remanded. FINDINGS OF FACT 1. At the October 2020 hearing, prior to the promulgation of a decision, the Veteran withdrew the appeal pertaining to the issue of entitlement to service connection for a right hand disorder. 2. Resolving all doubt in the Veteran’s favor, his current cervical spine disorder, diagnosed as degenerative joint disease of the cervical spine, is related to his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for right hand disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for degenerative joint disease of the cervical spine have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to March 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in November 2016 and January 2017 by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to service connection for right hand disorder. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the October 2020 hearing, prior to the promulgation of a decision, the Veteran withdrew the appeal pertaining to the issue of entitlement to service connection for a right hand disorder. In this regard, the hearing transcript reflects that the Veteran’s withdrawal of such claim was explicit and unambiguous, and includes a discussion of the consequences of a withdrawal with both the Veteran and his representative. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to such issue. Accordingly, the Board does not have jurisdiction to review the appeal of such issue and it is dismissed. 2. Entitlement to service connection for cervical spine disorder. The Veteran contends he has a current cervical spine disorder that had its onset in service as a result of his duties as a mechanic and he has experienced continuous symptoms to the present time. Thus, he claims that service connection for such disorder is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board observes that the record reflects a current diagnosis of degenerative joint disease of the cervical spine as noted at an October 2016 VA examination. Additionally, the Veteran’ service treatment records reflect that he complained of a stiff neck for two days and an impression of muscle spasm was rendered in January 1978, and his DD Form 214 reflects his military occupational specialty (MOS) was engineer/equipment repairment, with a comparable civilian occupation listed as diesel mechanic. However, the record contains conflicting opinions as to whether the Veteran’s current cervical spine disorder is related to his military service, to include such in-service complaint or the duties associated with his MOS. Specifically, the October 2016 VA examiner opined that the Veteran’s cervical spine disorder is less likely than not incurred in or caused by the claimed in-service neck pain symptoms. In support of such opinion, he found that there was no documented medical evidence of focal trauma or ongoing injuries ot the neck during service to account for the current extensive degenerative joint disease in the neck. Further, the examiner found that there was no documented medical evidence of ongoing neck pain symptoms while in service, at the time of his separation in January 1978, or soon after leaving service. Thus, he found that a continuity of neck pain symptoms in service, or nexus to service, could not be established. Conversely, a VA physician, J.E., provided a favorable opinion in December 2016, wherein she found that the Veteran’s current cervical disorder started during service. In this respect, she noted the January 1978 service treatment record and opined that such condition, when left with only the treatment provided in service and/or only using over-the-counter medications, had progressed to the current condition. According to Dr. J.E., “a cervical strain left untreated for many years would at least as likely as not potentially develop into arthritis of the neck …”. She also noted that a 1978 service treatment record showed that the Veteran was suffering from a right shoulder condition, which “at least as likely as not may have also been masking the symptoms of the Veteran’s cervical strain that he had during service” and led to the current conditions of the cervical spine, to include any radicular pain in the right upper extremity. Ultimately, Dr. J.E. stated the Veteran should be service-connected for a cervical strain as the symptoms he is experiencing are at least as likely as not related to the incidents seen in service. In light of the conflicting opinions, a VA clinician provided an addendum opinion in December 2016 in which he concluded that it is less likely as not that the Veteran’s cervical spine disorder was incurred in or caused by service. In this regard, he found that there was no indication during the January 1978 evaluation for neck pain that the condition was chronic or of a severe nature, noting X-rays were not indicated at the time nor taken to define any possible degenerative changes. The VA clinician also determined there was no further indication in the medical record that the Veteran developed a chronic neck condition following the evaluation in service, and there was no mention of a neck condition on the separation examination. In this regard, he reported that degenerative changes involving the cervical spine are normally due to use over time and common in the general population. Consequently, the VA clinician found that it is more likely than not that the Veteran developed degenerative disc disease of the cervical spine in the 30-plus years following service, and was “unrelated to this acute, self-limited condition during service.” Upon review, the Board notes that neither the October 2016 VA examiner nor the December 2016 VA clinician appears to have considered the Veteran’s lay testimony regarding his in-service and post-service symptomatology. Likewise, neither addressed the Veteran’s in-service duties as a mechanic and a possible nexus thereto. Here, the Board finds such inadequacies detract from the probative value of such opinions. In comparison, the Board affords significant probative weight to Dr. J.E.’s opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran, his relevant medical history, and pertinent medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Consequently, the Board resolves all doubt in favor of the Veteran and finds that his current cervical spine disorder, diagnosed as degenerative joint disease of the cervical spine, is related to his military service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 3. Entitlement to service connection for right shoulder disorder, to include as secondary to service-connected degenerative joint disease of the cervical spine. Similar to his claim for service connection for a cervical spine disorder, the Veteran contends he has a current right shoulder disorder that had its onset in service as a result of his duties as a mechanic and/or training in foxholes, and he has experienced continuous symptoms to the present time. In the alternative, he alleges that such disorder is caused or aggravated by his now service-connected degenerative joint disease of the cervical spine. In this regard, the record reflects a current diagnosis of right shoulder impingement syndrome and acromioclavicular joint osteoarthritis as noted at a January 2017 VA examination. Additionally, the Veteran’ service treatment records reflect that, at the time of his January 1978 separation examination, he complained of rheumatism of the right shoulder associated with damp weather, and his DD Form 214 reflects his military occupational specialty (MOS) was engineer/equipment repairment, with a comparable civilian occupation listed as diesel mechanic. Further, in the aforementioned December 2016 opinion, Dr. J.E. took note of the Veteran’s January 1978 report of a right shoulder condition that affected him during damp conditions, and found that it was at least as likely as not that such shoulder condition may have been masking the symptoms of an in-service cervical strain, leading to the current condition of the cervical spine, to include “any radicular pain” in the right upper extremity. She further opined that the symptoms the Veteran is experiencing are at least as likely as not related to the incidents seen in service. However, the Board notes that Dr. J.E.’s primary focus appears to be the nexus between the Veteran’s current cervical spine disorder and the documented in-service complaints. Notably, such serves as the basis for the award of service connection for degenerative joint disease of the cervical spine herein. However, the Board finds such is inadequate upon which to establish service connection for the claimed right shoulder disorder given that Dr. J.E. failed to clearly identify a diagnosis for such claimed disorder; rather, she simply refers to “radicular pain” in the right upper extremity, thereby suggesting that such was part and parcel of his cervical spine disability. Conversely, the January 2017 VA examiner opined it is not as likely as not that the Veteran’s current right shoulder disorder is due to service. Specifically, while she noted the Veteran’s mild complaint that his shoulder aches in damp weather during service, she found probative the absence of records showing ongoing problems after service, to include the VA treatment records dated from 2013 to 2017. The VA examiner explained that impingement and degenerative joint disease are not medically caused by complaints of shoulder aching in damp weather in 1978; rather, the current diagnosis is likely caused by heavy repetitive use of shoulders working in autobody repair for over 30 years and aging. In addition, she found it notable that the Veteran had the same condition in both shoulders and, thus, such symmetrical findings were related to his physical work over the decades. However, the Board notes the VA examiner failed to address the Veteran’s lay statements of symptoms during and since service. Likewise, while she acknowledged the effects of the Veteran’s post-service employment as an auto mechanic, she did not provide the same consideration for the Veteran’s similar in-service duties as a mechanic. Therefore, in light of the vague nature of Dr. J.E.’s opinion and the inadequacies found in the January 2017 VA examiner’s opinion, a remand is necessary to obtain an addendum opinion addressing whether the Veteran’s current right shoulder disorder is related to his military service, to include his duties therein, and/or secondary to his service-connected cervical spine disability. The matter is REMANDED for the following action: Forward the record, to include a copy of this Remand, to the VA examiner who conducted the January 2017 VA examination, or an appropriate substitute if unavailable, in order to obtain an addendum opinion as to the etiology of the Veteran’s current right shoulder disorder. After review of the record, the examiner should address the following inquiries: (A) For each currently diagnosed right shoulder disorder, identified as shoulder impingement syndrome and acromioclavicular joint osteoarthritis, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to the Veteran’s military service, to include his in-service duties as a mechanic, training in foxholes, and/or his report of rheumatism of the right shoulder associated with damp weather in January 1978. (B) With respect to the Veteran’s acromioclavicular joint osteoarthritis, the examiner should offer an opinion as to whether such manifested within one year of his separation from active duty in March 1978 (i.e., by March 1979). If so, please describe the manifestations. (C) For each currently diagnosed right shoulder disorder, identified as shoulder impingement syndrome and acromioclavicular joint osteoarthritis, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is caused or aggravated by his service-connected degenerative joint disease of the cervical spine. For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering any opinion, the examiner should consider the Veteran’s statements regarding the onset and continuity of symptomatology of his right shoulder disorder. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.