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Bva Case-shoulder Secondary To Neck

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allan

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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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