Citation Nr: 22010676 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-19 628 DATE: February 24, 2022 ORDER Entitlement to service connection for a bilateral shoulder disability is granted. REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. FINDING OF FACT The Veteran's bilateral shoulder disability has been attributed to his service-connected right lower extremity radiculopathy and/or right knee osteoarthritis. CONCLUSION OF LAW A bilateral shoulder disability is proximately due to or the result of the Veteran's service-connected right lower extremity radiculopathy and/or right knee osteoarthritis. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to November 1970. This case was previously before the Board in July 2019 and July 2021, when the issues listed above were remanded for additional development. An October 2021 supplemental statement of the case was most recently issued, and the claims are once again before the Board. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a bilateral shoulder disability, to include as due to a service-connected disability. The Veteran is service-connected for a lumbosacral strain with degenerative disc disease and degenerative changes of the lumbosacral spine, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, tinnitus, right knee osteoarthritis and bilateral sensorineural hearing loss. He asserts that his bilateral shoulder disability is the result of frequent falls due to his right leg giving out. See December 2015 VA and November 2016 VA treatment records, and December 2016 Buddy Statement. There are numerous medical opinions of record. A VA opinion obtained in December 2015 did not address secondary aggravation and is inadequate. 38 C.F.R. § 3.310(b). As such, little probative value is accorded to this medical opinion. The Board initially remanded the claim in July 2019 for an additional opinion. The Veteran was accorded another VA examination and opinion in December 2019. The Board, in the July 2021 Remand, noted inadequacies in the opinion obtained, and remanded the Veteran's claim for additional medical opinions. An August 2021 medical opinion was obtained. The VA examiner provided a negative medical opinion. However, the examiner then stated that the Veteran's claim for a bilateral shoulder disability is multifactorial, related to falls as well as due to his right knee buckling and right sciatica. It was noted that his complaints of shoulder pain started between 2011 and 2014, decades after his service ended in 1970. The examiner then noted that it is more likely than not that all of these conditions and situations have contributed to his bilateral shoulder disability and it is impossible to determine which condition is more likely than another to be the primary cause. The examiner then contradictorily noted that a nexus had not been established. Despite checking the boxes corresponding to negative opinions, when reading the August 2021 VA opinions in the light most favorable to the Veteran, the Board finds that the claim for service connection for a bilateral shoulder disability may be granted. Resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current bilateral shoulder disability and his service-connected right knee and/or radiculopathy of the right lower extremity. As all elements of service connection have been satisfied, service connection on a secondary basis is granted. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d), 3.310. As the Board is granting service connection for a bilateral shoulder disability, on a secondary service connection proximate causation theory of entitlement, it is not necessary to further address the claim seeking service connection on a direct basis. The nature and extent of this disorder is not before the Board at this time. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. Unfortunately, further evidentiary development is required prior to reviewing the issue remaining on appeal. The Veteran asserts that his cervical spine disability is related to falls caused by his right knee giving way or pain from his right lower extremity radiculopathy. See July 2016 Report of Contact, November 2016 VA Treatment Record, May 2017 VA treatment record, May 2018 VA treatment record. He additionally asserts that he injured his neck in service during a parachute accident. See October 2013 VA treatment record. Service treatment records confirm that the Veteran earned a parachute badge. The Veteran was initially provided a December 2015 VA medical opinion that did not address secondary aggravation. 38 C.F.R. § 3.310(b). As such, little probative value is accorded to this medical opinion. The Board initially remanded this claim in July 2019 so that an addendum medical opinion could be obtained. An additional medical opinion was obtained in December 2019. The Board again remanded the Veteran's claim for a cervical spine disability in July 2021 for additional opinions. Several opinions were obtained in August 2021. The Board finds that one of the numerous opinions obtained, specifically the one that addresses the Veteran's allegations of frequent falls, is inconsistent with the other evidence of record. In the August 2021 opinion, the examiner noted that the Veteran's frequent falls are less likely than not the result of the Veteran's service connected right knee and a nexus is not established. This opinion is in direct contradiction to the opinion noted above, which found, at least in part, that the Veteran's falls could be attributed to his service-connected knee. See August 2021 Bilateral Shoulder opinion. The Board finds that an addendum opinion regarding this claimed disability is thus warranted to reconcile these inconsistencies. The matters are REMANDED for the following action: Forward the Veteran's claims folder to an examiner for an addendum opinion. The examiner is requested to review the claims folder, to include this remand. Following review of the claims file the examiner should provide opinions on the following: Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's cervical spine disability had its clinical onset during his active duty service or is otherwise etiologically related to his duties related to service, specifically to include experiences while earning his parachute badge. Whether it is at least as likely as not that the Veteran's cervical spine disability was caused by his service-connected right lower extremity radiculopathy and/or right knee, specifically to include falls caused by these disabilities. Whether it is at least as likely as not that the Veteran's cervical spine was aggravated by his service-connected right lower extremity radiculopathy and/or right knee, specifically to include falls caused by these disabilities. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.