Citation Nr: 0004978 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-14 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for aggravation of left shoulder impingement and bursitis. 2. Entitlement to service connection for tension headaches. 3. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from April 1970 to January 1972 and from March 1973 to March 1981. He had subsequent brief periods of active duty associated with service in the United States Navy Reserves. This matter arises before the Board of Veterans' Appeals (Board) from a May 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that determined that service connection for left shoulder disability, neck and upper back disability, and tension headaches was not warranted. In a rating decision dated in October 1994, the RO denied entitlement to service connection for left shoulder disability and neck and upper back disorder. That rating became final insomuchas the veteran did not file a notice of disagreement (NOD) with the October 1994 rating decision. In a rating decision dated in December 1995, the RO reopened the veteran's claims with respect to his left shoulder and neck and upper back and deferred the claim for the purpose of scheduling a VA examination to determine residual disability from the inservice incident. In a rating decision dated in March 1996, the RO denied entitlement to service connection for residuals of an injury to the left shoulder, neck and upper back. The appeal has been ongoing since that rating decision. Appellate consideration of the issue of entitlement to service connection for a cervical spine disorder will be deferred pending completion of the development requested in the REMAND portion of this decision. FINDINGS OF FACT 1. Existing left shoulder impingement symptoms and bursitis were aggravated during a November 1992 trauma sustained while the veteran was on active duty associated with participation in the United States Navy Reserves. 2. The veteran's current tension headache disability is attributable to injury sustained in November 1992 while on active duty associated with participation in the United States Navy Reserves. 3. Evidence tending to show that a current disorder involving the cervical spine may be related to service has been presented. CONCLUSIONS OF LAW 1. Service connection for aggravation of left shoulder impingement and bursitis is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). 2. Service connection for tension headaches is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim for entitlement to service connection for a disorder involving the cervical spine is well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.159 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background An enlistment medical examination conducted in March 1970 is silent for any pertinent findings. Similarly, an examination for separation dated in January 1972 is negative for any relevant complaints, notations, or findings. In the report of an enlistment examination dated in September 1972 related to the veteran's second period of service, other than a history of a broken clavicle, the record is silent for pertinent findings. Included in the veteran's service medical records is a clinical entry dated in September 1977, at which time the veteran reported a history of migraines; the impression rendered was tension headaches. Also of record is a clinical entry dated in March 1980 in which the veteran complained of headaches when reading. The provisional diagnosis was presbyopia. Other entries throughout the veteran's periods of service that reveal any complaints of headaches were noted to be in conjunction with bouts of flu or congestion. In February 1981, the veteran reported a fall from the flight deck for a distance of about eight to ten feet. No complaints pertinent to the veteran's current claims are indicated at that time. In a report of medical history dated in March 1981, the veteran noted a history of recurrent back pain. Otherwise, review of the veteran's service medical records fails to reveal evidence that relates to the veteran's current claims. According to a VA examination report dated in October 1986, the veteran reported a past medical history of back pain and pain above the shoulders. In pertinent part, all clinical findings were normal. In a private medical doctor's opinion dated in February 1989, the physician noted the veteran's complaints of intermittent episodic pain that was mild in nature between 1970 to 1980, and then around 1981, the veteran stated that he fell off the flight deck, injuring his back further. The veteran reported that he then fell again at sometime close to the time of that examination, and landed on his back. On examination, the physician rendered an impression of spondylolysis with symptoms in the lower back. A chiropractor's statement dated in April 1989 primarily refers to symptomatology of the lower back. The chiropractor noted restriction of movement in the lumbar area. Private outpatient records that extended from 1988 to 1994 include ongoing complaints by the veteran of back pain. In a July 1989 record, the veteran was given a back brace. During VA examination conducted in January 1990, the veteran reported extreme pain in the upper back when sitting, lifting, or bending. The diagnosis was spondylolysis in the lumbar area. There was nothing related to the upper back. A private medical entry dated in September 1992 reveals complaints related to his left shoulder. The veteran reported that he injured his left shoulder at the same time he hurt his back when he fell in service sometime in 1980 to 1981. An impression was rendered of acute rotator cuff impingement. In a record dated in November 1992, the veteran reported that he reinjured his shoulder when a large piece of sheetmetal fell on top of him. The doctor diagnosed scapular contusion. A report from the accident that occurred in November 1992 is of record, which reveals that a metal shelf fell on the veteran's head and back, injuring his neck and left shoulder. The examiner noted contusions and abrasions of the left shoulder and upper back. An x-ray study of the left shoulder revealed normal findings. In a private orthopedic surgeon's letter dated in February 1993, the doctor noted, in pertinent part, that the veteran was being treated for chronic impingement of the left shoulder. In a record dated in August 1993, the veteran reported that his shoulder continued to bother him and that he had flare-ups for back pain. In a record dated in November 1993, the veteran was seen for symptoms related to the cervical spine. The doctor reported that the veteran's history suggested some question of trauma to that area. The veteran reported pain in the neck with some numbness of the upper extremity. The diagnosis rendered was slight rigidity of the cervical spine and postural change. An orthopedic surgeon's statement dated in August 1994 discloses that the veteran has a chronic back disorder. A statement was received in April 1995 from a lieutenant of the U.S. Navy, in which the lieutenant confirmed that the veteran was on active duty in the Reserves at the time of the November 21, 1992 accident. The officer stated that the veteran experienced severe back pain as a result of the accident and that symptoms continued until the time that the veteran was detached from that unit. A statement dated in January 1996 by the same surgeon as in 1994 reveals that the veteran has had ongoing neck and shoulder pain since the accident in service. VA examination report dated in November 1996 reveals complaints of constant pain in the left shoulder and neck pain with spasms associated with tension headaches. On examination, the examiner diagnosed mild impingement in the left shoulder and a high likelihood of rotator cuff tear on the left side. As to the neck, the examiner noted trapezius spasm bilaterally with evidence of objective radiculopathy in the upper extremities. The same examiner saw the veteran in May 1997 at which time the veteran had the same complaints as above with respect to his neck and upper back and his left shoulder. As to whether the veteran's disabilities stemmed from the November 1992 incident in service, the examiner noted that the veteran did have a prior history of left shoulder pathology. He indicated that he could not state for certain whether the veteran's residual disability is the result of the accident in November 1992, he could opine that the veteran had predisposing factors to develop the condition that he apparently incurred in November 1992. He opined that the veteran was predisposed to the sort of injury he incurred in November 1992 due to impingement symptoms and bursitis in the past and that the November 1992 injury likely contributed to the current pathology. In a private medical doctor's statement dated in January 1997, the physician noted that the veteran injured his neck in 1992 and that he has a bulging cervical disc for which he was being treated. The doctor stated that the muscle pain in the veteran's neck and muscle type contraction headaches are a result of the injury that occurred in 1992. An Magnetic Resonance Imaging (MRI) conducted in May 1998 revealed evidence of prior left AC joint trauma with edema. In June 1998, the veteran underwent surgery for a partial rotator cuff tear of the left shoulder. Analysis A veteran is entitled to service connection for disability resulting from disease or injury coincident with active service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.306(a) (1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1999). A threshold inquiry for all claims of entitlement to service connection is whether the claim is well grounded. 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, and hereinafter referred to as Court) has held that there are three basic evidentiary requirements to establish a well grounded claim for service connection: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of an inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), aff'd sub nom. Epps v. Brown, 9 Vet. App. 341 (1996). In addition to the general standard set forth in Caluza, chronicity and continuity standards can also establish the requirements for a well grounded claim. See Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity standard is established by competent evidence of the existence of a chronic disease in service (or during an applicable presumption period) and present manifestations of the same chronic disease. The continuity standard is established by medical evidence of a current disability; evidence that a condition was noted in service or during a presumption period; evidence of post-service continuity of symptomatology; and medical, or in some circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, supra. In this case, the veteran has established well grounded claims with respect to all three of the current issues before the Board. That is, he has submitted competent evidence of current left shoulder disability, upper neck and back disability, and tension headaches coincident with service. Caluza at 506. Specifically, the veteran in this case has submitted competent evidence of an inservice incurrence, that is, the accident that took place in November 1992 involving the left shoulder, back, and neck; clinical evidence of current disabilities; and evidence tending to show a medical nexus between pathology associated with current shoulder disability, upper back and neck and tension headaches and the veteran's period of service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (1999). In sum, there is no question of current disabilities, as substantiated by medical records noted above. In particular, with regard to the veteran's left shoulder disorder, in June 1998, the veteran underwent surgery for left shoulder rotator cuff tear. In a private statement rendered in January 1997, the doctor indicated pathology associated with cervical neck problems and headaches. Moreover, the record is clear that the veteran experienced an injury while on active duty in 1992 that resulted in residual disability of the left shoulder, and neck and upper back problems. A document is of record that supports the details of the accident in November 1992, at which time a shelving package fell on top of the veteran, hitting his left shoulder and upper back and neck area. Furthermore, of record is a statement by Lieutenant Reid W. Chambers, received in the record in April 1995 in which the lieutenant attested to the accident in 1992 that involved the veteran. The lieutenant further stated that at that time, the veteran complained of severe pain in the area where he was injured and continued to experience such pain until the time he left the unit. Thus, there is evidence to substantiate the veteran's rendition of what occurred while he was on active duty. Although the veteran himself is competent to testify to events that are readily observable by a lay person, see Espiritu v. Derwinski, 2 Vet. App. 492 (1992), the importance of this particular statement is that it confirms that at the time when the veteran was injured, he was on active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Most significant in this veteran's case is the statement provided by VA examiner in May 1997, at which time the examiner re-evaluated the veteran's disabilities and rendered a medical opinion as to the relationship between the veteran's disabilities and his period of service. The examiner definitively drew a conclusion that overall, in spite of the veteran's past medical history of left shoulder impingement and bursitis, the blow to the veteran's left shoulder in 1992 could have resulted in rotator cuff tear. In essence, the examiner stated that it was not felt that the veteran's left shoulder impairment existed completely before the 1992 injury or that the disability stemmed entirely from the incident. Rather, the examiner concluded that the 1992 injury likely contributed to current pathology of the left shoulder. In a private medical opinion rendered in January 1997, the physician stated that the veteran experienced muscle contraction type headaches that directly related to the former injury. The physician also noted that the veteran currently was being treated for his symptoms. The Board notes that the evidence being in relative equipoise, and in consideration of reasonable doubt, there is an approximate balance between positive and negative evidence as to the merits of the veteran's claim; thus, the benefit of the doubt in resolving this issue shall be given to the veteran, as provided under 38 U.S.C.A., §§ 1154, 5107. Therefore, in light of the foregoing bases and analyses, and in view of the evidence of record, service connection is warranted for aggravation of left shoulder impingement and bursitis, and tension headaches resulting from a November 1992 injury. ORDER Entitlement to service connection for aggravation of left shoulder impingement and bursitis is granted. Entitlement to service connection for tension headaches is granted. REMAND Because the veteran's claim for entitlement to service connection for a cervical spine disability is well grounded, the VA now has a statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a). The Court has held that the duty to assist the veteran in obtaining available facts and evidence to support his claim includes obtaining pertinent evidence that applies to all relevant facts. Littke v. Derwinski, 1 Vet. App. 90 (1990). The duty to assist includes obtaining copies of all records under the control of the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). Full compliance with the duty to assist also includes VA's assistance in obtaining relevant records from private physicians when the veteran has provided concrete data as to time, place and identity. Olson v. Principi, 3 Vet. App. 480, 483 (1992). Because the evidence of record is not presently sufficient to support a grant of service connection for a cervical spine disability, additional development is required. In order for any medical opinion regarding the etiology and nature of the veteran's currently-shown cervical spine disability to be fully-informed, the RO should first obtain records reflecting recent medical treatment involving the veteran's neck and upper back. After obtaining complete medical records reflecting the veteran's treatment subsequent to the 1992 accident, the RO should obtain a fully-informed medical opinion as to the etiology of the currently-shown cervical spine disability. If all or part of the present pathology is medically-related to the 1992 accident, then service connection for that amount of pathology would be in order. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers (VA and private) who have treated the veteran for complaints involving the cervical spine since the November 1992 accident. After securing the necessary release(s), the RO should obtain these records, including complete copies of any partial records already contained in the claims file. 2. The veteran should be afforded a VA examination by an appropriate specialist to identify the nature and etiology of the veteran's cervical spine pathology. The veteran's claims file, including all records obtained pursuant to the above request, must be made available to the examiner for review in conjunction with the examination. All tests and studies deemed helpful by the examiner should be performed in conjunction with the examination and the results made available to the examiner for review. The examiner is requested to identify specific diagnoses pertaining to all pathology in the area of the veteran's cervical spine. Then the examiner is requested to identify, as specifically as possible, the cause of each diagnosed disability. If any of the disabilities identified were caused in whole or part by the trauma experienced in November 1992, the examiner should specify which disability and what proportion of each is related to the trauma incurred when the metal shelf fell on the veteran in November 1992. The complete rationale for all opinions expressed should be fully explained. 3. After the development requested above has been completed, the RO should again review the record. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until so notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Heather J. Harter Acting Member, Board of Veterans' Appeals