Citation Nr: 0000708 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-12 251A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a cervical or neck disorder. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from January 1984 to April 1997. This appeal to the Board of Veterans Appeals (the Board) is from rating action in March 1998 by Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Fort Harrison, Montana. Service connection is in effect for residuals, left ankle injury, evaluated as 10 percent disabling; a left elbow condition, rated as 10 percent disabling; a right shoulder condition, rated as 10 percent disabling; and residuals, fracture, left middle finger, rated as noncompensably disabling. Service connection has been denied for a number of other disorders, none of which are part of the current appeal except as shown on the front cover of this decision. The veteran provided testimony at a personal hearing before a Hearing Officer at the M&ROC in August 1998. FINDINGS OF FACT 1. Post-service evidence reasonably demonstrates chronic disabilities of the left shoulder, neck or cervical and low back areas. 2. In service, the veteran had recurrent problems including injuries involving his left shoulder, cervical and lumbar areas. 3. Since service, medical experts have tacitly or overtly addressed the veteran's current problems in those same areas as being a result of the inservice injuries and disabilities. CONCLUSION OF LAW The claim of entitlement to service connection for left shoulder, neck and low back disorders is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Well Grounded Claim: Criteria In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (the Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Summary Background and Analysis Before the Board is permitted to undertake development of the evidence further, and thus make a determination as to the substantive merits of the case, it must address the issue of whether the claim is well grounded. If so, then, and only then, can the case be returned to the VAM&ROC for further development. As noted in the regulatory and judicial criteria discussed above, the threshold for finding a case to be well grounded in such a circumstance is much lower than for an ultimate substantive grant of service connection. Herein, the veteran had active service from January 1984 until April 1997. Service medical records show repeated problems, complaints, some injuries and treatment relating to the low back, neck and cervical areas, and left shoulder. Specifically, in March 1993, the veteran was seen for complaints of daily headache and neck pain with a history of whiplash. Slight developmental variations in the cervical spine were found on X-rays. Service records show that in June 1995, the veteran was seen on several occasions for left shoulder pain, and reported that he had had an old whiplash injury to the neck. He said that he had reinjured the shoulder by pulling the muscle two months before while doing plastic pipe work. One the June 28 visit, the veteran was still wearing a sling. He reported pain and crepitus in the left shoulder and lancinating pain which at times radiated down the arm to his fingers. X-rays of cervical spine and left shoulder showed only small developmental variants in the former, unchanged from before. Notations in July 1995 were that cervical traction was to be discontinued although he was to continue using the left shoulder sling during the day. He had had an exacerbation of left shoulder problems after lifting a child. In late July 1995, it was noted that he still had some tenderness at the left greater tuberosity as well as the left upper trapezius areas, and was told to continue the rehabilitation center for the left shoulder problems. August 1995 reports showed continued left shoulder problems but lessening of pain. Impingement was still said to be positive. In November 1996, clinical records show that the veteran said his right shoulder bursitis had been getting better until he rolled his car 10 days before, and since then, he had developed problems to include a right shoulder flare-up, and then, discomfort with pain in the left shoulder. The physician opined that the veteran had a right shoulder bursitis exacerbation along with bilateral trapezius strain and apparent minor impingement of his left brachial plexus after the motor vehicle accident. In November and December 1996, the veteran was seen for repeated complaints of neck and left shoulder pain and limitation of motion. It was said that his problems had been exacerbated by a motor vehicle accident. Cervical X-rays in November 1996 showed a developmental variation at C-1/ C-2; in addition, there was some reversal of the normal cervical curvature in the upper cervical region; and a "slight degree of spurring, especially involving the C-3, C-4, inner space posteriorly." It was felt that this was little changed from before, but the slight reversal of the normal cervical curve might represent some muscle spasm. In April 1997, a magnetic resonance imaging (MRI) showed bilateral shoulder impingement. The veteran's claim for service connection for the herein concerned disabilities was filed at separation from service. On VA examination in September 1997, the veteran reported a long and detailed history of neck (cervical), low back and left shoulder problems and injuries. The examiner noted a history of left shoulder pain but was unable to demonstrate a left shoulder disability. As for the cervical and lumbar spines, the examiner concluded both were then "normal" but in both cases, stated that "myofascial or facet syndrome must be ruled out", further testing for which was not undertaken. X- rays were reported negative. Since then, however, the veteran has been treated by VA and by a fee-basis physical therapist for neck, low back and cervical discomfort. Clinical records from 1998 show severe pain in and recorded instances of neck and bilateral shoulder muscle spasms. Detailed histories refer to repeated incidents in service relating to these areas. A statement is of record from the fee-basis physical therapist, dated in August 1998, to the effect that in caring for the back and shoulder complaints, the treatment approach has been focussed on the "assumption that the majority of his symptoms are stemming from chronic neck/shoulder injury and chronic low back injury dating back to this time while in service". It was further noted that these problems had since been exacerbated by other incidents. In his testimony in August 1998, the veteran again enumerated his many inservice problems with neck, left shoulder and low back injuries and disability, all of which he stated had continued with similar or identical symptomatology since then. He testified that he had been diagnosed as having left shoulder tendonitis and fibromyalgia (as in the right shoulder for which service connection is in effect). Tr. at 2, 4. He reported that physicians at a service and VA facilities had told him that his neck and back problems were intertwined with the shoulder difficulties, and that he was being treated for those as well with pain killers. Tr. at 3. The veteran stated that the back and shoulder problems waxed and waned. Tr. at 3. And that the left shoulder makes a cracking noise, is painful and his motion is limited by the pain. Tr. at 4. The Hearing Officer, the veteran and the veteran's representative discussed at length the possibility, based on what he had been told by his physicians, that the veteran's neck, back and left (and service-connected right) shoulder (and service-connected left elbow) symptoms were all intertwined, and that an additional special examination was therefore necessary. Tr. at 4, 6, 8-9. In summary, it appears that some of the clinical findings, including on X-rays and MRI's in service are of degenerative changes or actual impingement which would not tend to disappear. The VA examination shortly after separation from service showed continued complaints similar to those in service as related to left shoulder, neck and low back, but the examiner was unable to find a definite diagnosis, albeit additional tests were recommended, and not thereafter done. It is suggested by the evidence that in addition to possible degenerative changes in the cervical area, the veteran may have fibromyalgia, with which he says has been diagnosed. Recent treatment from late 1997 and into 1998 has shown that VA and service facilities apparently find the same symptoms as the veteran had in service, in some cases exacerbated at times, and all have noted no history other than that relating to the inservice injuries and symptoms. A fee-basis physical therapy has specifically identified the current problems as being basically due to the inservice injuries. This, with consideration of the entire evidentiary record, appears to provide a reasonable basis for finding that the three primary components of the well-grounded claim have been met, and accordingly, development of the evidence so as to be able to equitably proceed with the consideration of the claim on the substantive merits are appropriate. ORDER The claim of entitlement to service connection for left shoulder, neck and low back disorders is well grounded. To this extent only, the appeal is granted. REMAND This claim must be afforded expeditious treatment by the M&ROC. The law requires that all claims that are remanded by the Board or by the Court 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 (and M&ROC's) 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. Because the claim of entitlement to service connection for left shoulder, neck and low back disorders, is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VAM&ROC. Kutscherousky v. West, 12 Vet. App. 369 (1999). Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1996), the Board is deferring adjudication of the issues of entitlement to service connection for left shoulder, neck/cervical and low back disorders pending a remand of the case to the M&ROC for further development as follows: 1. The M&ROC should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records referable to his treatment for left shoulder, neck, and low back symptomatology. After obtaining any necessary authorization or medical releases, the M&ROC should obtain and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. 2. The M&ROC should arrange for a VA orthopedic examination of the appellant by an orthopedic surgeon and a neurologist, or other appropriate specialists who have not previously seen him for the purpose of ascertaining the current nature, extent of severity, and etiology of any left shoulder, cervical and lumbosacral disorders which may be present. The claims file and a separate copy of this remand, must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examination. Any further indicated special studies must be conducted. The examiners should express an opinion as to the specific diagnosis(es) and possible versus probable etiologies of all current left shoulder, cervical and lumbar disabilities, the relationship of current symptoms to similar symptoms in service and, specifically, to inservice injuries and diagnoses as well as already service-connected disabilities including but not limited to 38 C.F.R. § 3.310 (1999) and Allen v. Brown, 7 Vet. App. 439 (1995). Any opinions expressed must be accompanied by a complete rationale. 3. Thereafter, the M&ROC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the M&ROC should review the requested examination reports and the required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the M&ROC should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed appropriate in addition to that specified above, the M&ROC should re- adjudicate the issues of entitlement to service connection for left shoulder, cervical and low back disorders under all pertinent criteria. If the benefits requested on appeal are not granted to the veteran's satisfaction, the M&ROC should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the M&ROC. The veteran is advised that the examination requested in this remand is necessary to adjudicate his claim, and that a failure, without good cause, to appear for scheduled examinations, could result in the denial of his claim. 38 C.F.R. § 3.655 (1999). RONALD R. BOSCH Member, Board of Veterans' Appeals