HadIt.com Elder allan Posted May 20, 2009 HadIt.com Elder Share Posted May 20, 2009 Citation Nr: 0836956 Decision Date: 10/27/08 Archive Date: 11/05/08 DOCKET NO. 05-25 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left shoulder disability, including as secondary to a service-connected cervical spine condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Richmond, Counsel INTRODUCTION The veteran had active military service from December 1952 to October 1958. This matter comes to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for a left shoulder disability. The veteran was scheduled for a Board hearing in March 2007 but failed to appear or indicate any desire to reschedule. The Board remanded this case for additional development in June 2007. FINDING OF FACT The medical evidence shows that the veteran's service- connected cervical spine disability has aggravated the left shoulder disability beyond its natural progress. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.310(a)(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks service connection for a left shoulder disability, which he contends is related to his service- connected cervical spine disability. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131. "Service connection" basically means that the facts, shown by the evidence, 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. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. In addition, service connection can be granted on a secondary basis. Except as provided in 38 C.F.R. § 3.300©, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice- connected disease or injury, which is not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows a present left shoulder disability. An August 2000 VA examination report notes that the veteran had loss of motion in the left shoulder joint. The continued left shoulder difficulty involved the trapezius muscle and glenohumeral joint. The trapezius symptoms were diagnosed as muscular strain and the glenohumeral joint pain and loss of motion were diagnosed as frozen shoulder syndrome secondary to chronic rotator cuff impingement and tendonitis. An October 2004 VA x-ray examination report shows moderate to severe degenerative joint disease in the left shoulder. A June 2008 VA examination report shows degenerative arthritis in the left glenohumeral and acromioclavicular joints. The service medical records show the veteran fell and injured his neck and upper back in February 1958 and had complaints of pain in the neck and left shoulder. A September 1958 medical record shows complaints of intermittent pain in the left shoulder and neck of increasing severity and frequency. X-ray studies of the left shoulder were normal. As the record shows a present disability in the left shoulder and in-service injury to the neck with complaints of pain in the left shoulder, the determinative issue is whether there is any relationship between these. Associated with this determination is whether there is any relationship between the left shoulder disability and the service-connected cervical spine disability. An October 1959 VA examination report, one year post- discharge, showed full range of motion in the left shoulder. Neurological evaluation showed some poorly defined mild tenderness located over the upper border of the left trapezius and extending upward toward its insertion in the cervical spine area. An April 1962 VA orthopedic examination report showed full range of motion in the upper extremities. The shoulder joints also were reported to be "okay" on a December 1996 VA examination report. An August 2000 private medical record shows the veteran apparently was lifting a bucket in February and felt a pop in his left shoulder. On physical examination, he had limitation of motion in the left shoulder. The assessment was at least partial tear of the rotator cuff, which scarred and resulted in a frozen shoulder. In August 2000, a VA examination report shows that some of the left shoulder pain was diagnosed as referred pain from the neck. The examiner found that the veteran definitely recalled some left shoulder difficulty in the military but he stated that it was feeling well one year after the military. The shoulder continued to do well for many years and started with pain one year ago and progressed to loss of motion about six months ago. The examiner determined that the shoulder problem was separate from the neck and that the veteran probably would have developed the shoulder symptoms even without the neck problem. However, the examiner also determined that the trapezius portion of the shoulder symptoms was part of the neck problem; so it was related to the neck. The veteran always had some degree of trapezius difficulty on the left since the military. Considering that some of the left shoulder difficulty was related to the neck and military and some was probably unrelated, the examiner concluded that the present loss of motion could be partially considered secondary to the military. For instance, it would be reasonable to say that five degrees of the loss of external rotation and five degrees of the loss of internal rotation at the left shoulder would relate to the trapezius muscle portion of the difficulty and this would relate to the military. A 20-degree loss of elevation and 30-degree loss of abduction also would relate to that. The veteran underwent surgical injection and closed manipulation of the left shoulder in November 2000. A February 2004 VA examiner determined that the veteran's service-connected cervical spine disability affected the range of motion of the left shoulder but did not cause intrinsic damage to it. A June 2008 VA examination report shows the veteran thought his left shoulder problem was caused by the neck. He did not recall any orthopedic difficulty before the military or in basic training. The neck became painful later in the military when he was injured as a cook. He also had some shoulder discomfort at that time. He was able to resume full duties and stated that he was at full duty status in the last three months of the military. At one year after the military he thought he was still having some left trapezius muscle discomfort; he did not recall whether he had pain at either shoulder. He also did not recall any upper extremity symptoms at that time. The neck continued to be bothersome but the left shoulder apparently did well for many decades. There might have been some left trapezius muscle discomfort off and on that was associated with the neck; however, the shoulder joint itself apparently was not bothersome. The first time he could recall pain or difficulty in the left shoulder joint was in about 2000. The left shoulder pain started at that time with lifting. In the examiner's opinion, the veteran would have had the left shoulder problem even without the neck difficulty or the military experience; neither the neck nor the military caused a weakness of the shoulder. If the shoulder was related to the neck or the military the examiner would have expected symptoms much sooner than 2000. It was the examiner's opinion that it was less likely than not that the present left shoulder symptoms were related to the neck or the military. In addressing aggravation, however, the examiner found that the veteran's favoring of the neck probably made the left shoulder symptoms more bothersome. If this was considered to be an aggravation, the baseline status for the left shoulder would be the same as the present examination except for less pain. A percentage on this was that 80 percent of the present left shoulder difficulty represented the basic problems at the left shoulder. Twenty percent of the present left shoulder difficulty represented increased pain due to favoring the neck. The medical evidence shows that the present left shoulder disability is not directly related to service or the service- connected cervical spine disability. Although the veteran had complaints of pain in the left shoulder in service, his left shoulder arthritis and frozen shoulder did not manifest until after his post-service injury in 2000. The February 2004 VA examiner found that the cervical spine disability did not cause any intrinsic damage to the left shoulder and the VA examiners in August 2000 and June 2008 further found that the veteran would have had his left shoulder disability with or without his cervical spine disability or military service. The medical evidence does show, however, that the veteran's service-connected cervical spine disability has aggravated the left shoulder disability. Both the August 2000 and June 2008 VA examiners were very specific in the percentage of left shoulder symptoms they attributed to the cervical spine disability and those they did not. The baseline level of disability has been established by the medical evidence prior to August 2000 showing full range of motion in the left shoulder. After the injury in February 2000, the cervical spine disability was shown to affect a portion of the veteran's limitation of motion in the left shoulder. Thus, the cervical spine disability has aggravated the left shoulder disability beyond its natural progress. To the extent that the impairment in the left shoulder has been aggravated by the cervical spine disability, the veteran is entitled to compensation for the left shoulder disability. See 38 C.F.R. § 3.310(a)(b). The veteran's service connection claim for a left shoulder disability secondary to the service-connected cervical spine disability has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). ORDER Entitlement to service connection for a left shoulder disability, including as secondary to a service-connected cervical spine condition is granted, subject to the rules and payment of monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Link to comment Share on other sites More sharing options...
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allan
Citation Nr: 0836956
Decision Date: 10/27/08 Archive Date: 11/05/08
DOCKET NO. 05-25 483 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for a left shoulder
disability, including as secondary to a service-connected
cervical spine condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Richmond, Counsel
INTRODUCTION
The veteran had active military service from December 1952 to
October 1958.
This matter comes to the Board of Veterans' Appeals (Board)
from a December 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Oakland,
California, which denied service connection for a left
shoulder disability. The veteran was scheduled for a Board
hearing in March 2007 but failed to appear or indicate any
desire to reschedule.
The Board remanded this case for additional development in
June 2007.
FINDING OF FACT
The medical evidence shows that the veteran's service-
connected cervical spine disability has aggravated the left
shoulder disability beyond its natural progress.
CONCLUSION OF LAW
The criteria for service connection for a left shoulder
disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159,
3.102, 3.303, 3.310(a)(b) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran seeks service connection for a left shoulder
disability, which he contends is related to his service-
connected cervical spine disability.
In seeking VA disability compensation, a veteran generally
seeks to establish that a current disability results from
disease or injury incurred in or aggravated by service. 38
U.S.C.A §§ 1110, 1131. "Service connection" basically
means that the facts, shown by the evidence, 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. This may
be accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions. Where chronicity of a disease is not
shown in service, service connection may yet be established
by showing continuity of symptomatology between the currently
claimed disability and a condition noted in service. A
veteran may also establish service connection if all of the
evidence, including that pertaining to service, shows that a
disease first diagnosed after service was incurred in
service. 38 C.F.R. § 3.303.
In addition, service connection can be granted on a secondary
basis. Except as provided in 38 C.F.R. § 3.300©,
disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. When service connection is thus established for a
secondary condition, the secondary condition shall be
considered a part of the original condition. 38 C.F.R.
§ 3.310(a). Any increase in severity of a nonservice-
connected disease or injury, which is not due to the natural
progress of the nonservice-connected disease, will be service
connected. However, VA will not concede that a nonservice-
connected disease or injury was aggravated by a service-
connected disease or injury unless the baseline level of
severity of the nonservice-connected disease or injury is
established by medical evidence created before the onset of
aggravation or by the earliest medical evidence created at
any time between the onset of aggravation and the receipt of
medical evidence establishing the current level of severity
of the nonservice-connected disease or injury. 38 C.F.R.
§ 3.310(b).
When all the evidence is assembled, 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
a claim, in which case, the claim is denied. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The record shows a present left shoulder disability. An
August 2000 VA examination report notes that the veteran had
loss of motion in the left shoulder joint. The continued
left shoulder difficulty involved the trapezius muscle and
glenohumeral joint. The trapezius symptoms were diagnosed as
muscular strain and the glenohumeral joint pain and loss of
motion were diagnosed as frozen shoulder syndrome secondary
to chronic rotator cuff impingement and tendonitis. An
October 2004 VA x-ray examination report shows moderate to
severe degenerative joint disease in the left shoulder. A
June 2008 VA examination report shows degenerative arthritis
in the left glenohumeral and acromioclavicular joints.
The service medical records show the veteran fell and injured
his neck and upper back in February 1958 and had complaints
of pain in the neck and left shoulder. A September 1958
medical record shows complaints of intermittent pain in the
left shoulder and neck of increasing severity and frequency.
X-ray studies of the left shoulder were normal.
As the record shows a present disability in the left shoulder
and in-service injury to the neck with complaints of pain in
the left shoulder, the determinative issue is whether there
is any relationship between these. Associated with this
determination is whether there is any relationship between
the left shoulder disability and the service-connected
cervical spine disability.
An October 1959 VA examination report, one year post-
discharge, showed full range of motion in the left shoulder.
Neurological evaluation showed some poorly defined mild
tenderness located over the upper border of the left
trapezius and extending upward toward its insertion in the
cervical spine area. An April 1962 VA orthopedic examination
report showed full range of motion in the upper extremities.
The shoulder joints also were reported to be "okay" on a
December 1996 VA examination report.
An August 2000 private medical record shows the veteran
apparently was lifting a bucket in February and felt a pop in
his left shoulder. On physical examination, he had
limitation of motion in the left shoulder. The assessment
was at least partial tear of the rotator cuff, which scarred
and resulted in a frozen shoulder.
In August 2000, a VA examination report shows that some of
the left shoulder pain was diagnosed as referred pain from
the neck. The examiner found that the veteran definitely
recalled some left shoulder difficulty in the military but he
stated that it was feeling well one year after the military.
The shoulder continued to do well for many years and started
with pain one year ago and progressed to loss of motion about
six months ago. The examiner determined that the shoulder
problem was separate from the neck and that the veteran
probably would have developed the shoulder symptoms even
without the neck problem. However, the examiner also
determined that the trapezius portion of the shoulder
symptoms was part of the neck problem; so it was related to
the neck. The veteran always had some degree of trapezius
difficulty on the left since the military. Considering that
some of the left shoulder difficulty was related to the neck
and military and some was probably unrelated, the examiner
concluded that the present loss of motion could be partially
considered secondary to the military. For instance, it would
be reasonable to say that five degrees of the loss of
external rotation and five degrees of the loss of internal
rotation at the left shoulder would relate to the trapezius
muscle portion of the difficulty and this would relate to the
military. A 20-degree loss of elevation and 30-degree loss
of abduction also would relate to that.
The veteran underwent surgical injection and closed
manipulation of the left shoulder in November 2000.
A February 2004 VA examiner determined that the veteran's
service-connected cervical spine disability affected the
range of motion of the left shoulder but did not cause
intrinsic damage to it.
A June 2008 VA examination report shows the veteran thought
his left shoulder problem was caused by the neck. He did not
recall any orthopedic difficulty before the military or in
basic training. The neck became painful later in the
military when he was injured as a cook. He also had some
shoulder discomfort at that time. He was able to resume full
duties and stated that he was at full duty status in the last
three months of the military. At one year after the military
he thought he was still having some left trapezius muscle
discomfort; he did not recall whether he had pain at either
shoulder. He also did not recall any upper extremity
symptoms at that time. The neck continued to be bothersome
but the left shoulder apparently did well for many decades.
There might have been some left trapezius muscle discomfort
off and on that was associated with the neck; however, the
shoulder joint itself apparently was not bothersome. The
first time he could recall pain or difficulty in the left
shoulder joint was in about 2000. The left shoulder pain
started at that time with lifting.
In the examiner's opinion, the veteran would have had the
left shoulder problem even without the neck difficulty or the
military experience; neither the neck nor the military caused
a weakness of the shoulder. If the shoulder was related to
the neck or the military the examiner would have expected
symptoms much sooner than 2000. It was the examiner's
opinion that it was less likely than not that the present
left shoulder symptoms were related to the neck or the
military. In addressing aggravation, however, the examiner
found that the veteran's favoring of the neck probably made
the left shoulder symptoms more bothersome. If this was
considered to be an aggravation, the baseline status for the
left shoulder would be the same as the present examination
except for less pain. A percentage on this was that 80
percent of the present left shoulder difficulty represented
the basic problems at the left shoulder. Twenty percent of
the present left shoulder difficulty represented increased
pain due to favoring the neck.
The medical evidence shows that the present left shoulder
disability is not directly related to service or the service-
connected cervical spine disability. Although the veteran
had complaints of pain in the left shoulder in service, his
left shoulder arthritis and frozen shoulder did not manifest
until after his post-service injury in 2000. The February
2004 VA examiner found that the cervical spine disability did
not cause any intrinsic damage to the left shoulder and the
VA examiners in August 2000 and June 2008 further found that
the veteran would have had his left shoulder disability with
or without his cervical spine disability or military service.
The medical evidence does show, however, that the veteran's
service-connected cervical spine disability has aggravated
the left shoulder disability. Both the August 2000 and June
2008 VA examiners were very specific in the percentage of
left shoulder symptoms they attributed to the cervical spine
disability and those they did not. The baseline level of
disability has been established by the medical evidence prior
to August 2000 showing full range of motion in the left
shoulder. After the injury in February 2000, the cervical
spine disability was shown to affect a portion of the
veteran's limitation of motion in the left shoulder. Thus,
the cervical spine disability has aggravated the left
shoulder disability beyond its natural progress. To the
extent that the impairment in the left shoulder has been
aggravated by the cervical spine disability, the veteran is
entitled to compensation for the left shoulder disability.
See 38 C.F.R. § 3.310(a)(b).
The veteran's service connection claim for a left shoulder
disability secondary to the service-connected cervical spine
disability has been considered with respect to VA's duty to
notify and assist. Given the favorable outcome noted above,
no conceivable prejudice to the veteran could result from
this adjudication. See Bernard v. Brown, 4 Vet. App. 384,
393 (1993).
ORDER
Entitlement to service connection for a left shoulder
disability, including as secondary to a service-connected
cervical spine condition is granted, subject to the rules and
payment of monetary benefits.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
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