Veteranclaims’s Blog

February 12, 2018

Single Judge Application; worsened; “no etiological relationship” does not encompass aggravation; El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013); “related to” encompasses causation, but not aggravation; “there is no known relationship”;

Excerpt from decision below:

“Mr. Delporto argues that the phrase “there is no known relationship” between his shoulder disabilities and his back disabilities does not sufficiently address the question of whether his shoulder disabilities were aggravated by his service-connected back disability. See El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013) (concluding that the phrase “related to” encompasses the causation aspect of secondary service connection, but not the aggravation aspect).”

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“The Court agrees with Mr. Delporto: the examination report does not sufficiently address the issue of aggravation. First, the passage in El-Amin to which the Secretary refers only addresses the possibility that a relational phrase may be sufficient to notify an examiner that an opinion on aggravation is requested. Id. The passage does not stand for the idea that relational phrases can form the basis of an adequate opinion as to aggravation. Id.
Second, while the use of the word “worsened” was likely added to the examiner’s report to address the aggravation prong of secondary service connection, the mere presence of this word does not cure the examination’s inadequacy. The overall tenor of the examiner’s conclusion is that Mr. Delporto’s shoulder arthritis was not caused or worsened by his back disability because there is no relationship between the two disease processes. Such a conclusion still does not adequately address the question of whether Mr. Delporto’s shoulder disability is more severe than it should be because of the symptoms of his back disability. See Allen, 7 Vet.App. at 449 (where an examiner noted “no etiological relationship” between a service-connected disability and a non-serviceconnected one, it was “a big stretch of the English language” to construe the phrase as encompassing aggravation).
Specifically, the opinion does not address whether any symptoms of Mr. Delporto’s back disability, such as guarding, limitation of motion, muscle spasm, or other similar symptoms, may have increased the severity of his bilateral shoulder arthritis beyond the degree of disability that would be present without his service-connected back disability and its residuals. This is particularly important in light of a December 2014 statement by a VA physical therapist, indicating that Mr. Delporto’s back disability may have caused him to overuse his shoulders when lifting heavy objects. R. at 2251.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3788
CARL DELPORTO, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Veteran Carl Delporto served in the Navy from August 1952 to August
1956. He has bilateral shoulder arthritis, which he attributes to an in-service fall and to the strain of carrying heavy cargo on his neck and shoulders. Alternatively, he asserts that his bilateral shoulder arthritis was either caused or aggravated by his service-connected back disability, relying on statements from a VA physical therapist.
The issue presently before the Court is whether the Board committed error in a September 2016 decision denying service connection for his bilateral shoulder arthritis. For the reasons discussed below, the Court will vacate the September 2016 decision and remand the matter to the Board.
Mr. Delporto’s first assignment of error concerns the “aggravation” element of secondary service connection. He asserts that a December 2015 medical opinion did not adequately address whether his bilateral shoulder arthritis was aggravated by his service-connected back disability, and that it was error for the Board to rely on it.1
1 Mr. Delporto also challenged the adequacy of a November 2014 VA examination, as well as an August 2015
addendum to that opinion. However, the Board did not rely on these reports in reaching its conclusion. Although it
discussed their findings in a recitation of the facts, the Board ultimately found that the positive evidence of record was
outweighed only by the December 2015 medical opinion. Thus, the adequacy of the other VA opinions need not be
resolved here.
2
A disability may be service connected on a secondary basis by demonstrating either that the disability is either proximately due to, or results from, a service-connected disease or injury, or that it is aggravated by an already service-connected disease or injury. Allen v. Brown, 7 Vet.App. 439, 448 (1995). For the purposes of secondary service connection, “aggravation” is defined as any increase in the severity of a non-service-connected disability by a service-connected
disability, unless there is evidence indicating that the increase in severity is due to the natural progress of the disease. 38 C.F.R § 3.310(b) (2017).
Whether a medical opinion is adequate is a finding of fact that the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); see also Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013). A finding is clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Sharp v. Shulkin, 29 Vet.App. 26, 31 (2017).
In pertinent part, the December 2015 opinion states that “[t]here is no known relationship between [the veteran’s] service connected low back disability and his shoulder arthritis. It is unlikely his low back problem contributed to his mild [arthritis] of the shoulder.” R. at 1807. The opinion further states that “[t]he shoulder condition was not caused by his service connected low back disability nor has it been worsened by his low back problem” because shoulder arthritis, a
“relatively rare” condition, is caused by “[s]ignificant trauma, fracture or dislocation of the shoulder”; inflammatory arthritis; or congenital abnormalities. Id. According to the examiner, none of these factors was present in Mr. Delporto’s case. Id.
Mr. Delporto argues that the phrase “there is no known relationship” between his shoulder disabilities and his back disabilities does not sufficiently address the question of whether his shoulder disabilities were aggravated by his service-connected back disability. See El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013) (concluding that the phrase “related to” encompasses the causation aspect of secondary service connection, but not the aggravation aspect). The Secretary argues that the December 2015 opinion’s treatment of the issue of aggravation is adequate, because the conclusion that Mr. Delporto’s shoulder disability was not “worsened by his low back problem” makes it clear that the examiner was referring to aggravation. He also asserts that El-Amin left open the possibility that a relational phrase such as “related to” can actually encompass an adequate
opinion on the issue of aggravation. El-Amin, 26 Vet.App. at 141-42 (a request that a VA examiner
3
state whether alcohol abuse was related to PTSD “could, perhaps, be interpreted as including a request for an opinion on aggravation.”)
The Court agrees with Mr. Delporto: the examination report does not sufficiently address the issue of aggravation. First, the passage in El-Amin to which the Secretary refers only addresses the possibility that a relational phrase may be sufficient to notify an examiner that an opinion on aggravation is requested. Id. The passage does not stand for the idea that relational phrases can form the basis of an adequate opinion as to aggravation. Id.
Second, while the use of the word “worsened” was likely added to the examiner’s report to address the aggravation prong of secondary service connection, the mere presence of this word does not cure the examination’s inadequacy. The overall tenor of the examiner’s conclusion is that Mr. Delporto’s shoulder arthritis was not caused or worsened by his back disability because there is no relationship between the two disease processes. Such a conclusion still does not adequately address the question of whether Mr. Delporto’s shoulder disability is more severe than it should be because of the symptoms of his back disability. See Allen, 7 Vet.App. at 449 (where an examiner noted “no etiological relationship” between a service-connected disability and a non-serviceconnected one, it was “a big stretch of the English language” to construe the phrase as encompassing aggravation).
Specifically, the opinion does not address whether any symptoms of Mr. Delporto’s back disability, such as guarding, limitation of motion, muscle spasm, or other similar symptoms, may have increased the severity of his bilateral shoulder arthritis beyond the degree of disability that would be present without his service-connected back disability and its residuals. This is particularly important in light of a December 2014 statement by a VA physical therapist, indicating that Mr. Delporto’s back disability may have caused him to overuse his shoulders when lifting heavy objects. R. at 2251. Accordingly, the Court concludes that the Board clearly erred in relying on the December 2015 examination report to deny service connection for aggravation of bilateral shoulder arthritis by a service-connected back disability. Remand is necessary so that the Board may obtain an adequate medical opinion on the question of aggravation.
Given this disposition, the Court will not address Mr. Delporto’s remaining contention that
the Board provided an insufficient statement of reasons and bases for rejecting evidence of
continuous shoulder pain since service. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (“[a]
narrow decision preserves for the appellant an opportunity to argue those claimed errors before the
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Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule
against him”). On remand, Mr. Delporto is free to submit additional evidence and argument, and
the Board is required to consider any such relevant evidence and argument. See Patricio v. Shulkin,
29 Vet.App. 38, 47 (2017).
On consideration of the foregoing, the Court VACATES the September 30, 2016, Board
decision and REMANDS the matter for further proceedings consistent with this decision.
DATED: February 8, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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