Citation Nr: 1648499	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  11-34 171	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUES

1.  Entitlement to service connection for left shoulder disability.

2.  Entitlement to service connection for left hip disability.

3.  Entitlement to service connection for neck disability.

4.  Entitlement to a temporary total rating for convalescence because of treatment for a service connected left ankle disability. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

T. S. Willie, Counsel 


INTRODUCTION


The Veteran served on active duty from November 1982 to June 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office in Huntington, West Virginia.  The case has since been transferred to the jurisdiction of the RO in Anchorage, Alaska.  

In March 2013, the Veteran appeared at a hearing before a Veterans Law Judge who has since retired from the Board.  In August 2016, the Veteran was afforded another hearing before a member of the Board.  Transcripts of both hearings are of record.  

The Board previously remanded this case in January 2014 for further development.


FINDINGS OF FACT

1.  A left shoulder disability is as likely as not attributable to service.

2.  A left hip disability is as likely as not attributable to service.

3.  A cervical spine disability is as likely as not attributable to service.

4.  Service connection has been established for a left ankle disability.

5.  Service connection has not been assigned for an Achilles tendon disability.  


CONCLUSIONS OF LAW

1.  With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for a left shoulder disability are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).

2.  With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for a left hip disability are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).

3.  With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for a cervical spine disability are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).

4.  The criteria for a temporary total disability evaluation for convalescence following left ankle surgery have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.30 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) 

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein.  There is no issue as to providing an appropriate application or the completeness of the application.  By correspondence dated in May 2009, VA advised the Veteran of the information and evidence needed to substantiate the claims.  The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. 

VA has also satisfied its duty to assist.  The claims folder contains service treatment records, VA medical records/VA examinations, and identified private medical records.  No additional pertinent records are shown to be available, and the appellant does not argue otherwise.

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

ANALYSIS

Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Certain chronic diseases, such as arthritis, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

The Veteran appeals the denial of service connection for a left shoulder, left hip and neck disability.  The Veteran served as a maintenance installation technician during service.  He testified that he climbed structures up to 2000 feet high and that he carried his own tools to include carrying or pulling antennas and cable to the location on the tower.  He expressed that the job was physically demanding and very tiring, and that his back, neck, shoulders, hips, knees, ankles bore the weight of every tower he climbed.  The Veteran attributes his neck and shoulder problems to carrying the heavy loads up and down the towers and pulling cables through manholes.

In the April 2009 VA examination, the Veteran reported that in 1986 while participating in martial arts he had what he felt like a subluxation of the left hip.  He reported that since that incident he has had hip pain when climbing or going upstairs and occasional popping.   He also reported pain and stiffness of both shoulders which he attributed to job duties such which included lifting.  Left hip sprain without limitation of motion or radiographic evidence of degenerative changes and normal exam of the shoulders without limitation of motion or radiographic evidence of degenerative changes was diagnosed.  

The May 2011 VA examiner opined that the Veteran's left hip condition was less likely as not (less than 50/50 probability) caused by or a result of active service.  
It was found that there were no documented hip injuries on available service treatment records and no active hip complaints noted following the VA examination in April 2009 and recent examination at the Alaska VA.  Although the Veteran says yes to arthritis and rheumatism on the separation examination, the VA examiner stated that he did not indicate the left hip as a problem and that there is insufficient evidence of a chronic condition related to active service for the left hip.  

The October 2014 VA examiner opined that the Veteran's left hip disability was at least as likely as not (50 percent or greater) related to service.  The VA examiner stated that the Veteran had several injuries to his left hip including an incident in martial arts in which he performed a maneuver and felt his hip pop.  The VA examiner stated that the mechanism of injury of marital arts with kicking can indeed injure the hip soft tissue including the tendons, muscles and the labrum.  It was noted that the Veteran had a history of twisting and pivoting motions.  The VA examiner noted the Veteran's injury in 1986 and that his job as a communications NCO in the Air Force required him to climb towers, poles and buildings on ladders to install equipment.  Therefore, he opined that it is at least as likely as not (50 percent or greater probability) that the left hip condition, hip subluxation (probable labrum tear), iliotibial band syndrome and hip flexor strain was incurred in or caused by the claimed in-service injury, event or illness.  

In October 2014, the VA examiner also opined that the Veteran's shoulder condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition.  He stated that the Veteran has a diagnosis for the shoulders to include a rotator cuff tendinopathy, impingement syndrome and acromioclavicular arthritis.  The shoulder conditions he stated were caused by specific mechanisms of action - trauma or repetitive use.  The mechanism of injury of falling on an outstretched hand causes forces to travel through the arm into the shoulder joint which can cause a tear in the shoulder labrum he said.  The examination supports this diagnosis but cannot be confirmed without a shoulder arthrogram.  In February 2015, however, the same VA examiner opined that the Veteran's shoulder condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness.  The VA examiner reasoned that Veteran has chronic shoulder conditions of the right shoulder and the left shoulder.

In October 2016, Dr. K noted that the Veteran was being treated for cervical spondylosis, stenosis, herniation and radiculopathy, and that gave a past history of multiple traumatic events involving his neck which involved falling up to 30 times from heights up to 35 feet while working on telephone lines or communication towers while on active duty.  Dr. K found that the above findings were related to active duty.  

Also, in a statement received in October 2016, K.S expressed that he worked on numerous jobs on towers and telephone poles with the Veteran.  He stated that the Veteran hurt himself a couple of times pulling up hardware to a tower holding his neck and back but that he never stopped working.  In a separate statement, the Veteran's wife recalled him coming home from work after a long day in the field holding his neck.  She expressed that he has experienced unbearable neck pain since retiring.  

After weighing the evidence, the Board finds in favor of the Veteran's claims for service connection for a left shoulder, left hip and cervical spine disability.  The Veteran has presented lay evidence of the physical demands of his military occupational specialty which resulted in neck, shoulder and hip problems.  He is competent to report hip, shoulder and neck problems and the circumstances surrounding such.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds no evidence impeaching the Veteran's description of the in-service problems and, thus, the Board accepts as true that the injuries occurred as reported by the Veteran.  

Although the Veteran's disabilities were not formally diagnosed in service, his statements in conjunction with the favorable October 2014 VA opinion on the hip, favorable February 2015 VA opinion on the shoulder, favorable opinion from Dr. K on the neck and the lay statements of K.S and the Veteran's wife, place the evidence at least in equipoise.  Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran.  38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102.  Accordingly, the claims for service connection are granted.  

In making the decisions above, the Board notes that in a November 2014 decision the RO granted service connection for a left hip disability.  It appears, however, that a full and final determination of this issue was never promulgated.   

Temporary Total Evaluation 

A total disability rating for convalescence will be assigned if treatment of a service connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, with regular weight-bearing prohibited, or immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30(a)(1), (2), (3).

The Veteran appeals the denial of a temporary total rating for convalescence because of treatment for a service-connected left ankle disability.  After review of the record, the Board finds against the claim.  To that end, a review of the record shows the Veteran is service-connected for a chronic left ankle sprain.  In October 2014, the Veteran submitted a claim for a temporary total disability due to surgical treatment of the left ankle.  

In August 2014, Dr. D noted that the Veteran was seen for left Achilles tendon pain and that his injury began during karate practice earlier in the year.  He had left Achilles tendon debridement and repair surgery in September 2014.  

In December 2014, Dr. C stated that the Veteran was recovering nicely from Achilles tendon debridement.  This injury she stated is likely correlated to his ankle fracture dislocation that he sustained while in the Army.  She saw a connection between his Achilles tendon pathology on the left side as well as the ankle pathology that he sustained while he was in the service.

The November 2014 VA examiner, however, stated that the evidence showed that in early 2014 the Veteran incurred a severe injury to his left Achilles tendon during karate practices and that he now contends that the left Achilles tendon and surgical repair that followed are related to a service-connected sprain.  The VA examiner opined the surgery was less likely than not (less than 50 percent probability) incurred in or caused by in service injury, event or illness.  After separating from military service the Veteran continued to actively practice martial arts, specifically karate, the examiner stated.  She noted that in early 2014 the Veteran incurred a severe injury to his left Achilles tendon during karate practice.  The examiner found that the evidence of record clearly and unmistakably shows that his Achilles tendinosis with tear and subsequent surgical repair is the result of a recent karate injury unrelated to military service and that the left Achilles tendon debridement and surgical repair was not caused, related or aggravated by the service connected left ankle sprain.

The Board has been presented with conflicting opinions as to the relation between the Veteran's service-connected left ankle disability and his Achilles tendon debridement and repair surgery.  The Board finds, however, that the medical opinion rendered by the November 2014 VA examiner is persuasive and assigns it greater probative weight than the opinion of the private examiner Dr. C.  It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases.  Owens v. Brown, 7 Vet. App. 429 (1995).  Here, the opinion of the VA examiner was rendered by a medical professional with the expertise to opine on the matter at issue in this case.  The VA examiner also provided reasoning for the opinion reached.  Significantly, Dr. C did not provide a basis for the opinion reached.

The Board is mindful of the Veteran's statements that he injured his Achilles tendon back in the 1980s and early 1990s running, and that he fractured and dislocated it playing intramural softball for his squadron.  He claims he sprained and twisted his ankle, and injured his Achilles tendons on numerous times while on active duty.  According to the Veteran, his original ankle sprain was not just an ankle sprain but rather he twisted his ankle all around injuring his Achilles tendon.  

The Board notes that the Veteran is competent to report ankle and tendon problems and the circumstances surrounding such.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Although the Veteran believes that his left ankle disability and current left Achilles tendon debridement and repair surgery are related, the most probative evidence is against the claim.  While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issues in this case, whether the left ankle disability and current left Achilles tendon debridement and repair surgery are related falls outside the realm of common knowledge of a lay person, their etiology cannot be determined based solely on observable symptoms, it requires clinical knowledge and testing.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  The Board finds that the VA opinion is far more probative and persuasive on this matter than the lay statements of record.  The VA examiner opinion was rendered after review of the record (containing pertinent information) and consideration of the nature and extent of the service connected disability.

In sum, the most probative evidence of record preponderates against finding for a temporary total rating for convalescence because of treatment for a service connected left ankle disability.  The Veteran had Achilles tendon debridement and repair surgery which has been found by the more probative evidence to be unrelated to his service connected left ankle disability.  As there is not an approximate balance of positive and negative evidence regarding the merits of the claims that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  Accordingly, entitlement to a temporary total rating for convalescence because of treatment for a service connected left ankle disability is denied.  
 

ORDER

Entitlement to service connection for left shoulder disability is granted.

Entitlement to service connection for left hip disability is granted.  

Entitlement to service connection for neck disability is granted.  

Entitlement to a temporary total rating for convalescence because of treatment for a service connected left ankle disability is denied.  



____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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