Citation Nr: 23024399 Decision Date: 04/27/23 Archive Date: 04/27/23 DOCKET NO. 16-07 832 DATE: April 27, 2023 ORDER Entitlement to service connection for a left shoulder disability, to include rotator cuff tendonitis, is granted. REMANDED Entitlement to service connection for a neck condition, to include as secondary to a lumbar spine condition, is remanded. FINDING OF FACT The probative evidence of record is at least in approximate balance that the Veteran's left shoulder disability is related to an in-service injury during a period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability, to include rotator cuff tendonitis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on periods of active duty from August 1981 to July 1985, September 1987 to September 1990, and October 2009 to January 2010. The Veteran additionally served on periods of ACDUTRA in the National Guard beginning in June 2008 through December 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2013 (left shoulder) and August 2016 (neck) rating decisions. The Board previously remanded this appeal in March 2020 for further development. Additional examinations and medical opinions were provided in May and June 2021. As a result, the AOJ granted service connection for a lumbar spine disability in a June 2021 rating decision, finding the condition, which existed prior to service, was permanently aggravated beyond its natural progression by a subsequent in-service injury. The Board's remand also noted that the Veteran has contended her cervical spine condition is caused or aggravated by her lower back condition. However, because the lumbar spine disability was not yet service-connected at the time of the examinations conducted pursuant to the Board's remand, the VA examiner did not provide any opinion with respect to whether the lower back condition caused or aggravated the Veteran's cervical spine condition. Accordingly, remand is warranted for a supplemental medical opinion on this question. The Board notes that in February 2019, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed with the Board. A transcript of the hearing is of record. In February 2023, the Board sent the Veteran a letter informing her that the VLJ who conducted her hearing was no longer with the Board and that the Veteran had the right to another optional hearing with a VLJ who would decide her appeal. See 38 C.F.R.§ 20.604; 20.106(b). The Veteran responded in February 2023, submitting a signed statement that she did not wish to appear at another Board hearing and indicating the Board should consider her appeal based on the evidence of record. Thus, the Veteran waived an optional additional Board hearing. 1. Entitlement to service connection for a left shoulder disability The Veteran contends she suffered an injury to her left shoulder in approximately 1988, during her second period of active service, that she never recovered from the injury, and that her current left shoulder disability reflects a continuation and progression of that in-service injury. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated by service-the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38?C.F.R. §?3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis therefore requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the nexus element, the current disability may be either (a) proximately caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additionally, while the Veteran contends her injury occurred during her second period of active service, the Board also notes that in the context of the Army National Guard, active military service is defined to include any period of ACDUTRA in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Analysis Turning to the evidence of record, the Board finds that the first element of service connection is met. The medical evidence and VA examinations of record reflect that the Veteran has been diagnosed with rotator cuff tendonitis of the left shoulder as well as a partial tear, moderate to high grade, of the left supraspinatus muscle. The Board also finds the second element of service connection is met. The Veteran has credibly reported that she suffered an injury to her left shoulder during her second period of active service, in or around 1988, while performing push-ups in preparation for her Army Physical Fitness Test. She reported that she was told to go "further down" while doing push-ups, felt and heard a pop in her shoulder, and experienced immediate, severe pain. The Veteran is competent to report factual matters of which she has first-hand knowledge, including experiencing an injury. See Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board has no reason to doubt her credibility as to the occurrence of the injury. Additionally, she submitted a lay statement from P.F., dated August 2020, who was a colleague at the time of the claimed injury during the Veteran's active service from 1987 to 1990. P.F. reported that she witnessed the Veteran's left shoulder injury and drove her to a nearby hospital for treatment that same day. Although the Veteran has not presented medical records reflecting this injury, she has credibly explained that, due to the passage of time, the civilian hospital no longer has her records from when she was seen, nor did she recall the outside physical therapy provider she saw for follow-up treatment. Finally, the Board finds that the evidence is at least in approximate balance that the third element of service connection is met-that there is a nexus to service between the Veteran's current left shoulder condition and her in-service injury. On this question of nexus, the Board observes that there are medical opinions both for and against the claim. The Veteran's treating physician, Dr. M.K., opined in a June 2022 statement that her left shoulder disability (rotator cuff tendonitis) was at least as likely as not caused by her in-service injury. Dr. M.K. mentioned medical literature regarding the etiology of rotator cuff injuries as well as the Veteran's credible statements coupled with the consistent statement of P.F., who witnessed the injury. Dr M.K. did not provide any detail as to how the Veteran's current left shoulder condition represents a progression of her in-service injury, but the Board finds his opinion is entitled to at least some probative value, as it represents the informed conclusions of a medical professional with relevant expertise, and is underpinned by a sufficient rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning). Additionally, the opinion is based on Dr. M.K.'s familiarity with and long-term treatment of the Veteran. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001) and Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). Thus, although lacking in detail, the Board affords this opinion some probative weight. However, the Board's conclusion that the element of nexus is satisfied is based not only on this medical opinion, but on the other competent and credible evidence of record, including the Veteran's testimony and witnesses' lay statements. The Veteran testified that her left shoulder injury persisted over the years despite physical therapy and steroid injections. She reported that it improved with treatment but never resolved. She reported that, over the years, any instances of overuse aggravated the shoulder, but she had just learned to live with it. She testified she had always been unable to sleep on her left side due to the shoulder pain. She has not reported any intervening shoulder injuries, and none are reflected in her medical records. The Board finds the Veteran is competent to testify to her ongoing symptoms of shoulder pain since the initial injury and that her statements are credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay statements are competent to establish the presence of observable symptomatology). The statement of P.F., and the statement of her sister, K.D. (dated January 2021), also reported awareness of the Veteran's attendance at physical therapy and her persistent shoulder symptoms. The Board acknowledges the May 2021 VA negative medical nexus opinion. However, although the VA examiner annotated the Veteran's report of the injury, the examiner did not actually address her lay statements at all, instead basing the negative opinion solely on the absence of in-service treatment records. The Veteran has credibly stated that she was transported to a civilian hospital emergency room (rather than a military treatment facility) and that she was unable to obtain her records from this hospital years later. She has also submitted credible supporting witness statements describing the left shoulder injury, the aftermath including the emergency room visit, and subsequent ongoing symptomatology. The VA examiner did not address the Veteran's explanation for the missing treatment records, did not address the lay statements she submitted in January 2021 in support of her claim from her former colleague, P.F. (statement signed/dated August 2020), or her sister, K.D. (dated January 2021), and did not address the Veteran's reports of continuous symptoms or opine whether it was medically plausible that the Veteran's in-service injury could have persisted over the years and resulted in her current symptoms and condition. Accordingly, the May 2021 VA medical opinion is inadequate for failing to consider the Veteran's lay statements of in-service incurrence and continuous symptoms. See Miller v Wilkie, 32 Vet. App. 249, 257-62 (2020). See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a VA examiner may not ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Board has considered whether remand is warranted to obtain an adequate VA medical opinion, but finds that the other evidence is sufficient to at least place the issue of nexus in approximate balance. See Lynch, 21 F.4th at 776. Thus, considering all the evidence of record, including that pertinent to service, the evidence is at least in approximate balance that the Veteran's current left shoulder disability was incurred in service when she injured her shoulder performing push-ups during physical training. See 38 C.F.R. § 3.303(d). Accordingly, the Veteran's appeal as to service connection for a left shoulder disability is granted. REASONS FOR REMAND 1. Entitlement to service connection for a neck condition, to include as secondary to a lumbar spine condition, is remanded. The Board's March 2020 remand noted that the Veteran contended her neck pain/condition is secondary to or due to her back condition. The Board thus directed a VA examiner consider whether the Veteran's neck condition was caused or aggravated by her service-connected disabilities. As a result of the Board's remand, a VA examiner opined in May 2021 that the Veteran's neck condition was not caused or aggravated by her service-connected disabilities, which at that time did not include her back condition. Thus, the examiner did not provide an opinion as to whether her lower back disability caused or aggravated her neck condition. However, the same examiner opined in a separate opinion that her back condition was permanently aggravated in service, and thus, in June 2021, service connection was granted for the back disability. The AOJ did not thereafter obtain an addendum opinion as to whether the Veteran's neck condition was caused or aggravated by her newly service-connected back disability. Such opinion is within the scope of the Board's prior remand directive and is necessary before the Board may proceed to adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran submitted January 2021 and June 2022 nexus opinions from Dr. M.K. regarding her neck condition. The January 2021 opinion noted that her "further neck pain" was a "result of the consequences of her lower back" but did not provide any detail or rationale. This opinion is inadequate. In the June 2022 opinion, submitted after the AOJ returned the appeal to the Board, Dr. M.K. referenced medical literature and stated that the literature addressed how postural changes caused by lower back disabilities can place stress on the neck, and consequently opined that the Veteran's neck condition (cervical spondylosis) was caused by her lower back condition. The Veteran included the referenced medical literature in her submission to the Board. However, in reviewing the referenced literature, it does not state that postural changes from lower back disabilities can place stress on the neck. One article merely states that lower back pain can reduce postural balance, but does not mention or address any referred cervical spine/neck posture or neck pain, while the other article states that poor posture of the neck itself (i.e., forward head posture) can stress the cervical spine, lead to neck pain, and potentially result in spinal degeneration in the long term. The latter article does not mention posture of the lower back. Moreover, Dr. M.K. did not describe the Veteran's neck disability in sufficient detail so as to relate the medical literature to the Veteran's specific facts, or adequately explain how poor posture of the service-connected lower back (rather than forward posture of the neck itself, as discussed in the referenced literature) would cause or aggravate cervical spondylosis in the Veteran. Dr. M.K. did not discuss any medical records relevant to whether or what type of postural changes of the lower back the Veteran actually has, whether they are permanent changes, or to what degree any such postural changes may have affected her neck. See 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."). The opinion of Dr. M.K. is not sufficient to decide the claim. As there is no VA opinion at all on the theories of secondary service connection with regard to the back disability, remand for an opinion is warranted. The Board will instruct the examiner to take Dr. M.K's theories regarding postural changes into account. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified VA examiner, addressing whether the Veteran's neck condition is related to her lower back disability on a secondary basis. An additional in-person or telehealth examination of the Veteran may be scheduled, if the AOJ determines such examination is necessary. Following a review of the entire record, including VA examinations, medical records, the Veteran's competent lay statements, as well as the Veteran's reports regarding the onset and progression of her current symptomatology, the examiner should opine as to the following: (a.) Whether it is at least as likely as not (meaning the likelihood is at least approximately balanced, if not higher) that the Veteran's cervical spine/neck condition was caused by the Veteran's service-connected lower back condition. The examiner should specifically address whether the Veteran's lower back disability has resulted in postural changes, and, if so, if those postural changes have, in turn, caused the Veteran's neck disability. (b.) Whether it is at least as likely as not (meaning the likelihood is at least approximately balanced, if not higher) that the Veteran's cervical spine/neck condition was aggravated by the Veteran's service-connected lower back condition. The examiner should specifically address whether the Veteran's lower back disability has resulted in postural changes and, if so, if those postural changes have, in turn, aggravated the Veteran's neck disability. The examiner is reminded that causation and aggravation are independent concepts and require separate findings and rationales. If the examiner relies on any medical literature in support of his or her conclusions, such literature should be specifically cited and discussed. A complete rationale is required for any opinion provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley 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.