Citation Nr: 21030056 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-23 381 DATE: May 17, 2021 ORDER Entitlement to service connection for a disability of the right wrist and hand, claimed as muscle spasms, is granted. Entitlement to service connection for a left shoulder condition is granted. Entitlement to service connection for a psychiatric condition is granted. FINDINGS OF FACT 1. The Veteran's right wrist and hand disability, claimed as muscle spasms, was incurred in his active-duty service. 2. The Veteran's left shoulder condition was incurred in his active-duty service. 3. The Veteran's psychiatric condition was incurred in his active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disability of the right wrist and hand, claimed as muscle spasms, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a left shoulder condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a psychiatric condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to April 1990 and from November 1990 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was conducted. See June 2015 VA Form 9. The Board remanded these issues for further development in March 2019 and the RO issued a supplemental statement of the case (SSOC) in July 2020. Service Connection Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a disability of the right wrist and hand, claimed as muscle spasms. The Veteran asserts that he experienced painful muscle spasms during and after his active-duty service. See July 2014 Correspondence. In its March 2019 remand, the Board noted conflicting medical evidence of record, including a positive September 2012 VA examination report and a negative July 2013 VA addendum opinion. See March 2019 Board Decision at 15-17; see also id. at 20 (remanding for additional examiner's opinion). The Board also noted that there was no diagnosis of a specific disorder of record, but that the evidence suggested that there may be functional impairment rising to the level of a disability. Thus, the Board remanded to obtain an opinion as to whether the Veteran has any disability manifested by muscle spasms, or whether such muscle spasms result in functional impairment. The Veteran was provided a VA examination in January 2020 in which the examiner found a disability of the right wrist and hand, which was described as muscle spasms and strain of unspecified muscle, fascia, and tendon at right wrist. The Board therefore finds that the first Shedden factor has been satisfied. The Veteran's service treatment records (STR) reflect the occurrence of several musculoskeletal injuries. See February 2020 VA Examination Report (Muscle Spasms) at 3 (noting 1984 fall down flight of stairs); see also January 2014 STR at 3; see also February 2012 Medical Treatment Records at 6 (providing April 1988 note of treatment for wrist pain following a fall. The Board therefore finds that the second Shedden factor has been satisfied as well. As discussed in the Board's prior remand, the September 2012 VA examiner opined that the Veteran's muscle spasms were at least as likely as not incurred in his active-duty service. See September 2012 VA Examination Report at 30. In reaching this conclusion, the September 2012 VA examiner stated that "[the Veteran] has continued to experience the same symptoms as he has during active service" and that "there is documentation to support chronicity of this condition that is the same as the complaints he had during active service." See id. at 31; see also id. at 10 (noting that "[the Veteran] has experienced severe intermittent muscle spasm all over his body for numerous years... spasms occur without provocation and last [approximately] 15-20 minutes"); see also April 2000 Medical Treatment Records at 3 (providing December 1999 treatment note observing "[complaints of]... generalized pain all over body"). However, a July 2013 addendum opinion from a different examiner states that "[the Veteran's] current subjective complaint of diffuse muscle spasm is less likely than not due to or... a continuation of any service diagnosis." See July 2013 VA Form 21-6789 at 2. In reaching this conclusion, the July 2013 VA examiner stated that "muscle strain is by definition a stretch injury of muscle that is more likely than not a self-healing condition that does not result in a residual condition." See id. Following the Board's prior remand, the Veteran underwent an additional VA examination in January 2020. The January 2020 VA examiner likewise opined that it is less likely than not that the Veteran's current condition was incurred in his active-duty service. See January 2020 VA Medical Opinion at 1. However, in support of this conclusion, this examiner stated only that "[during] service, [the] condition was acute only" and that "[there] is no evidence of chronicity of care [and] [a] nexus has not been established." See id. at 2; cf. also January 2020 VA Examination Report (Muscle Spasms) at 3 (noting continued treatment with analgesic medication). The January 2020 VA examiner's opinion does not explain why an acute condition would continue to be treated with analgesic medication if it had fully resolved. "[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight... if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board assigns the January 2020 VA examiner's opinion only minimal probative weight on this point. The Board also notes that the July 2013 VA examiner did not have the opportunity to personally examine the Veteran and did not provide an alternative non-service-connected etiology for the Veteran's condition to explain why, if its in-service manifestation was only acute in nature, it would continue to require treatment with analgesic medication thereafter. The Board therefore finds that the balance of evidence is in equipoise between the July 2013 and September 2012 examiners' opinions. 38 U.S.C. § 5107. The assignment of service connection for the Veteran's disability of the right wrist and hand, claimed as muscle spasms, is therefore warranted. 38 C.F.R. § 3.303. 2. Entitlement to service connection for a left shoulder condition. The Veteran asserts that his left shoulder condition is due to an injury sustained while training for boxing during his active-duty service. See February 2012 Correspondence at 4. As an initial matter, the Board notes that the Veteran's medical treatment records reflect the existence of a left shoulder condition. See March 2012 Medical Treatment Records at 2 (providing December 2010 magnetic resonance imaging results showing, among other conditions, "tendinopathy of the anterior supraspinatus tendon insertion" and "near 360-degree circumferential labral tear"); see also January 2020 VA Examination Report (Shoulder) at 2 (diagnosing shoulder strain). The Board therefore finds that the first Shedden factor has been met. The Board also notes that the Veteran's STR reflect an injury of the left shoulder. See January 2014 STR at 3 (providing February 1990 examiner's finding of "[left] shoulder pain... [secondary] to boxing"). The Board therefore finds that the second Shedden factor has been met as well. The Board remanded this issue for a VA examination in its prior remand. See March 2019 Board Decision at 18-19. As noted above, this examination was provided in January 2020. The January 2020 VA examiner likewise noted the Veteran's assertions that his condition had worsened following his active duty service but provided a similarly inadequate opinion. See January 2020 VA Examination Report at 4; cf. January 2020 VA Medical Opinion at 1-2 (providing only the conclusion that "[during] service, condition was acute only[,] [there] is no evidence of chronicity of care[,] [and] [a] nexus has not been established"); see also Nieves-Rodriguez, 22 Vet. App. at 304. The January 2020 VA examiner has not provided an alternative non-service-connected etiology to explain the Veteran's left shoulder condition, nor does he explain why the Veteran would continue to experience ongoing symptoms if his in-service injury was acute and fully resolved. See March 2020 Medical Treatment Records at 157 (providing June 2019 treatment note for shoulder pain); see also October 2011 Medical Treatment Records at 6. While the Board notes that the Veteran's treatment for this condition does not appear to have been continuous from his active-duty service onward, and that evidence of a prolonged period without medical complaint can be considered along with all the other evidence of record, the Board is also mindful that portions of the Veteran's earlier post-service treatment records are only partially legible. The Board finds that further remands on this point would be futile in light of the January 2020 examiner's inadequate opinion. The Veteran is competent, and the Board finds him credible in this case, to report symptoms of chronic left shoulder pain. "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]" Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau and providing in pertinent part that medical evidence is not always required to establish a nexus for direct service connection). The Board therefore concludes that it is at least as likely as not that the Veteran's left shoulder condition has persisted since his active-duty service. 38 U.S.C. § 5107. The assignment of service connection is therefore warranted. 38 C.F.R. § 3.303. 3. Entitlement to service connection for a psychiatric condition. The Veteran asserts that he has a psychiatric condition began during his active duty service and has continued since that time. See February 2012 Correspondence at 4-5. While the Veteran has previously been examined for adjustment disorders, the Board remanded this issue for an additional VA examination considering other psychiatric conditions as well. See March 2019 Board Decision at 17-18. This examination was provided in January 2020 by a separate VA examiner. This examiner diagnosed the Veteran with mild alcohol use disorder. See January 2020 VA Examination Report (Psychiatric) at 1; see also id. at 7 (noting the Veteran's report of drinking "about a pint of vodka a day" for the past 2 years). In reviewing the medical evidence of record and his examination of the Veteran, the examiner noted that: [The] Veteran is currently denying any mood symptoms and is not diagnosed with a mood disorder, specifically a depressive disorder. [He] has been diagnosed with Adjustment Disorder and depressive disorders in the past, but currently he is not reporting any depressive symptoms. [He] is taking Zoloft, but [he] denied noticing any improvements... therefore, Zoloft is not considered managing his depressive symptoms. [His] medical records indicate [a] long history of poor coping with stressors, specifically relationship stressors. [He] does report history of depression when relationships are not working out or if there is conflict. This indicated history of Adjustment Disorder with symptoms resolving as stressors resolve. At this time, [he] is not reporting any stressors and is not diagnosed with a mood disorder[;] [he] is not reporting depressive symptoms due to his past failed marriages and not being there for his son when his son was growing up. [He] is being diagnosed with Alcohol Use Disorder, Mild, which was reported to have begun after service and not related to adjusting to any specific stressor. Therefore, [he] is not reporting his alcohol use was to cope with his past depressive symptoms. See January 2020 VA Examination Report (Psychiatric) at 11 (capitalization in original). This examiner therefore opined that "it is less likely as not... that the Veteran's [psychiatric condition] had an onset in, or is otherwise related to[,] [his active-duty] service." See January 2020 VA Medical Opinion (Psychiatric) at 2. This opinion is partially inconsistent with contemporaneous medical treatment records. See June 2020 Medical Treatment Records at 6-7 (noting ongoing treatment for, and diagnostic impression of, depression). However, it is consistent with the opinion of a prior examiner, who diagnosed chronic unspecified adjustment disorder in September 2012. See September 2012 VA Examination Report at 2. This examiner opined that: [The Veteran] has a chronic Adjustment Disorder characterized by episodes of marital instability, irritability[,] and overall dissatisfaction personally. He states that numerous deployments during his 11-year military career caused marital problems and eventually resulted in 2 divorces. This examiner does not believe there is a linkage between [the Veteran's] Chronic Adjustment Disorder and military service. See id. (capitalization in original); see also id. at 8 (opining that the Veteran "has a chronic Adjustment Disorder which he states began to show worsening symptoms 5 years after the military"). However, neither of these opinions explain why the Veteran's "long history of poor coping with stressors, specifically relationship stressors" and "history of depression when relationships are not working out or if there is conflict" are inconsistent with his assertions that the stresses of multiple deployments contributed to precisely such relationship stressors. See January 2020 VA Examination Report (Psychiatric) at 11; cf. April 2013 Correspondence at 2-3 (describing relationship conflicts and multiple divorces resulting from deployments); see also January 2014 STR at 5 (providing partially legible November 1990 note of anxieties and depression). Nor does either examiner provide any reasoning to support the inference that the Veteran's assertions on this point are not credible, or that his symptoms are the result of a noncompensable personality disorder or primary alcohol abuse. See 38 C.F.R. § 4.127 (providing that personality disorders are generally not compensable); see Allen v. Principi, 237 F.3d 1368, 1376 (2001) (distinguishing between noncompensable primary alcohol abuse and alcohol abuse as a symptom arising from a service-connected disorder). (Continued on the next page) A lay witness is generally competent, and the Board finds the Veteran credible, to report symptoms capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau, 492 F.3d at 1376. The Board finds that such symptoms include mood disturbances and irritability. While the Veteran is not competent to opine as to whether those symptoms are indicative of a psychiatric condition, the VA examiners' opinions provide sufficient competent evidence to diagnose such conditions. The Board therefore concludes that it is at least as likely as not that the Veteran's current psychiatric disorder, diagnosed as chronic adjustment disorder, began during his active duty service, and has continued since that time. 38 U.S.C. § 5107. The assignment of service connection is therefore warranted. 38 C.F.R. § 3.303. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.