Citation Nr: 1326341 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-25 992 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the residuals of a right shoulder injury. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to September 1954. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a July 2009 rating decision by the RO. It was remanded by the Board for additional development in August 2012 and has now been returned to the Board for the purpose of appellate disposition. The Veteran and his wife testified at a hearing before an Acting Veteran's Law Judge in June 2012. That Acting Veteran's Law Judge is no longer employed by the Board. The Veteran was offered the option of having another hearing before a current Veterans Law Judge, but declined this opportunity. The Veteran also testified at a July 2010 hearing held before a Decision Review Officer (DRO) at the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The current right shoulder disability manifested by the residuals of an acromioclavicular injury is shown as likely as not to be due to an event that was incurred in connection with the Veteran's combat service in Korea. 2. The Veteran is not shown to have manifested complaints or findings referable to a low back disorder during service or for many years thereafter. 3. The currently demonstrated low back degenerative changes are not shown to be due an injury or other event or incident of the Veteran's period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his right shoulder disability manifested by acromioclavicular changes is due to an injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The Veteran's low back disability manifested by degenerative changes is not due to a disease or injury that was incurred in or aggravated by active service; nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in January 2009, prior to the rating decision that explained how VA could assist him with developing evidence in support of his claims. The January 2009 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as explained how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA electronic and paper treatment records, private treatment records, the written contentions of the Veteran, and a transcript of the testimony that was provided at the June 2012 and July 2010 hearings, as well as at previous hearings that the Veteran had in connection with earlier claims for service connection for his right shoulder disorder. The Veteran was provided with VA examinations in connection with his claims. The Veteran was afforded VA examinations of his back and shoulder in September 2012, which were provided in accordance with the instructions which were set forth in the August 2012 remand. These examinations adequately addressed the history and development of the Veteran's right shoulder and low back complaints. Nonetheless, because it was felt that the examiner might not have provided full credence to the Veteran's accounts of his in service complaints, despite referencing his description of his in service injuries, the Board requested an additional expert opinion on these issues which was received in March 2013, and which also adequately addressed the causation of the Veteran's current back and right shoulder disorders. More recent VA treatment records were also obtained in accordance with the remand. The Board concludes that VA complied with the requirements of the VCAA in this case and that, additionally, there was substantial compliance with the instructions which were set forth in the August 2012 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection The Veteran asserts that he sustained a right shoulder injury and developed a chronic low back disorder during his period of active service. Specifically, he reports being injured in Korea when an incoming artillery round knocked him backwards, causing him to hit his right shoulder on some sandbags or the ground and to roll backwards and injure his back. The Veteran was awarded a Purple Heart Medal for right forearm shrapnel injuries. He is service connected for the residuals of a right forearm shell fragment wound with damage to Muscle Group I and a residual scar of the right forearm as a result of this incident. The Board notes that, in cases involving combat, VA shall accept as sufficient proof satisfactory lay evidence of in service incurrence or aggravation of a disease or injury, if consistent with the times, places, and circumstances of the combat service, notwithstanding lack of documentation in the service treatment records. 38 U.S.C.A. § 1154. The Board, therefore, accepts the Veteran's assertions that he hurt his shoulder and back in this incident as being credible. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases which are enumerated in 38 C.F.R. § 3.309 may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In most cases, medical evidence of a nexus is required. However, with respect to the diseases set forth in 38 C.F.R. § 3.309, evidence of continuity of symptoms may provide the requisite nexus. Walker v. Shinseki, 708 F.3d 1331 (2013). The service treatment records show that the Veteran was wounded by a mortar explosion on the right side of his neck while he was in a trench in April 1953. The wound was cleaned and dressed, and he was returned to duty. The service treatment records are negative for complaints or findings of right shoulder or back disorder. At the Veteran's separation examination in August 1954 the Veteran's upper extremities and spine were assessed as being normal. After service, the Veteran was examined by VA in October 1955. At that time, he reported sustaining multiple shell fragment wounds to the right side of his neck and right forearm and spraining his ankle. An orthopedic examination was accomplished at that time, and the Veteran's spine and upper extremities were normal. All motions of the cervical spine and upper extremities were noted to be normal with unimpaired strength, normal coordination, and no atrophy. With respect to the lumbosacral spine, there was no limitation of bending or turning in any direction; a normal lumbar lordships was noted. There was no pelvic list, and the straight leg raising test was normal. A private treatment record shows that the Veteran was seen for a right shoulder condition in January 1985 when he complained of three weeks of right shoulder pain after falling on some baby oil in the bathroom and striking his elbow. He had severe pain in the bicipital groove region. The X-ray studies were essentially normal, although it looked like he had some calcium in the region of the trapezoid and conoid ligaments of the right shoulder. The Veteran was given an injection and some medication. The diagnosis was that of tendinitis with the possibility of a right rotator cuff tear. The Veteran was reexamined by VA in December 1985 when he reported injuring his right shoulder in service. He added that the injury occurred when he was struck by shell fragments and was blown or knocked against a mound of sandbags due to a shell explosion. He reported striking the sandbags with his right shoulder, being sore at the time he was hospitalized for his shell fragment wounds, but never paying any attention to it. The Veteran reported that his shoulder was sore and had been painful since that time. Additionally, he had a lump in his shoulder after that. An examination of the right shoulder showed a prominence of the distal end of the clavicle that was moderately tender and a decreased range of motion in the upper arc. The diagnosis was that of right shoulder with acromioclavicular separation. In a written statement received by VA in April 1986, the Veteran reported having pain and limited motion in his right shoulder since service, as well as a lump. He reported that he did not complain about his right shoulder in service because of his combat duties. The Veteran was afforded a hearing in July 1986 when he testified about being wounded in his neck and right arm after being blown against a bank and hitting his right shoulder. Because of his other wounds, he noted that he did not give his right shoulder a lot of thought even though he was sore and had trouble lifting his arm. He reported that he continued to go on patrol despite his right shoulder pain and got more strength in his right shoulder as his symptoms improved. After he came home, he first noticed a lump on his shoulder. Gradually, through the years, it got worse and was aggravated when he fell in the shower during the previous year. He did not seek any treatment until he fell in the shower, even though he gradually lost strength and function of his right shoulder. He retired from the construction industry due to right shoulder problems. The Veteran had another hearing in September 1991 and testified that, for five or six days after being returned to duty after the incident during service, he had difficulty lifting his heavy weapon. He did not notice if he separated his shoulder or had a lump on his shoulder at that time because of the heavy clothing he wore in the field. His shoulder was noted to have been painful, but he did not say anything about it and first noticed the lump on his shoulder about a year later. It gradually got bigger. After service, he worked in construction and, over the last 10 years, had problems climbing ladders due to his right shoulder. Swinging a hammer caused pain and soreness in the right shoulder, but three or four years ago it was no problem. He added that he never had an injury to his shoulder after service other than when he fell in the shower and worked in heavy construction without losing any work due to his shoulder. His work after service involved a lot of movement. He never got any treatment for his right shoulder prior to falling in the shower but got a shot that helped for about six months and had no further treatment for the next six years. The Veteran submitted a letter from his doctor dated in October 1991. The doctor related that the Veteran gave a history of having pain in his right shoulder since the Korean War after he was injured in an explosion. Currently, he had an old acromioclavicular separation associated with a significant amount of calcification of the conoid and trapezoid ligaments. The joint space was not significantly altered. There was restricted range of motion in the right shoulder compared with the left. The Veteran submitted a letter from a member of his unit in service in October 1993. That individual confirmed that he had injured his right shoulder in service and sometimes had to be replaced on patrol because he could not carry heavy weaponry. He asked for medication for the right shoulder, but was told that the medic did not have anything and that it would improve after a few days. The Veteran testified at another hearing in April 1997 that he believed that the calcification that was seen on an x-ray study after his fall in the shower was caused by his earlier injury in 1953. He reiterated that, when suffering the shell fragment wounds in service, he was blown against some sand bags and hit his right arm. He did not seek treatment for his right shoulder in service or report his right shoulder injury at his discharge examination because it was "past history." The problems with his right shoulder were the same as when he left Korea and were "not drastic." In Korea, he missed a few patrols because he could not hold his shoulder up. The Veteran denied that his right shoulder was examined at the October 1955 VA examination, notwithstanding the findings on the examination report. His shoulder was in good shape at that time, had a lump and got worse over the years, even though he did not seek treatment until after the fall in the shower in 1985. His work physicals prior to that had noticed that his shoulder symptoms were getting worse, but no examination addressed that. After his initial treatment for the right shoulder injury in 1985, he did not seek any additional treatment for his right shoulder. The treatment records from the 1990's show that the Veteran was seen for a number of medical problems, but still maintained a very active lifestyle. He swam, used the treadmill, and played golf carrying his own bag for 18 holes without any problem. In July 1999, he was seen for right buttock pain for the past few weeks, but denied having any acute trauma or history of low back or hip pain. An x-ray study of the Veteran's back performed at this time showed an "impressive spondylolisthesis of L5 on S1." The impression was that of L5, S1 radiculopathy with a good deal of pain for the past three weeks. Initially, he was treated with epidural steroid injections with good effect, but eventually underwent a lumbar fusion procedure in 2009. In December 2008 the Veteran reported having a serious back problem in addition to his right shoulder injury and not knowing whether it was related to his service but it was possible that his service partially contributed to it. He submitted a VA x-ray study from December 2006 showing second degree spondylolisthesis for L5 and S1 and degenerative disk disease and defect in the pars interarticularis that was consistent with his private treatment records. In August 2009, the Veteran reiterated that he felt that his medical problems could have been caused by being knocked to the ground by shell concussions in service. In October 2009, he again reported that he was knocked down when he was struck by shrapnel, felt a burning in his arm at that time and saw the medic who picked out some metal. After service, another piece of metal was taken out of his arm by his family doctor. The Veteran testified at a hearing before a DRO in September 2010 that he injured his back when he was blown back on his right side by a mortar shell blast and rolled down into a valley. He also injured his right shoulder at that time and missed a few patrols due to right shoulder problems. He was taken to a hospital where shrapnel was removed, but was not treated specifically for his back or right shoulder. He did not receive any treatment for his back in service. In contrast to his earlier testimony that he had worked in heavy construction, he now reported working as a chemical engineer and denied that he had any physically demanding jobs after service. The Veteran testified that his doctor told him that there was a strong possibility that the blast in Korea caused his back injury and that he had a lump on his right shoulder prior to when he fell in his bathroom. He did not know if he got any shrapnel in his right shoulder, although he did get some in his neck that was removed. He had pain and limited mobility in his shoulder, but was not being treated because he did not want to get surgery. The Veteran also submitted a written statement noting that he read medical publications that stated that an injury can cause degenerative disk disease. He speculated that the injury which caused his right shoulder girdle muscle damage also caused the lump on his shoulder. The Veteran testified at another hearing in June 2012 that a mortar shell exploded near him in Korea and knocked him over a hill and caused immediate right shoulder pain. He had shrapnel in his neck and shoulder that was removed after he was taken to a field hospital. He also reported hurting his back at that time. He did not seek treatment for his back or right shoulder problems after service because he felt that it would interfere with his job prospects. At some point after service, he went to a doctor who took a piece of shrapnel out of his hand. He testified that he complained about his hand to VA prior to this, but nothing was found wrong. He also testified that his arm was hurt later when a second mortar round exploded nearby and that, on several occasions, mortar rounds had exploded nearby and knocked him down. His wife testified that she was already dating the Veteran before he went into service and that he never complained about his injuries but had been "suffering for a long time." The Veteran was afforded VA examinations of his back and right shoulder in September 2012. With respect to the right shoulder, the Veteran was noted to have been diagnosed with right rotator cuff tendonitis in January 1985 and degenerative joint disease of the right shoulder in 1991. He gave a history of a right shoulder injury that occurred in 1953 when he was thrown against sandbags and later thrown down a hill. He remembered having pain after this incident and missed out on some patrols. Since his discharge in 1954, he had had a history of right shoulder pain. He was limited in what strokes he could do when swimming. He gave a history of limited movement of the shoulder. He reported falling on the floor in the bathroom approximately 15 years after service and undergoing treatment by a private doctor. He had not had any shoulder surgery, but did have increased pain and decreased range of motion in the shoulder. The pain occurred with certain sleeping positions, movement, and overhead work. He did not take any medication for his right shoulder pain and regularly exercised. It was noted that a recent x-ray study had shown that he had had an acromioclavicular joint separation in the past that was now resolved. Current x-ray studies also showed moderate DJD. After reviewing the Veteran's documented treatment history and relevant literature, in addition to the examination and history given by the Veteran, the examiner concluded that his right shoulder disability did not arise during service and was not otherwise related to that service. It was noted that the claims file did not document any complaints related to the right shoulder until his fall in January 1985 and that all of his documented complaints occurred after this incident. The examiner concluded that the Veteran's current right shoulder condition was a result of the acute slip and fall that occurred in January 1985. Additionally, his degenerative joint disease was related to aging. The examiner noted that the acromioclavicular joint separation documented in 1985 had resolved. This was not related to any military trauma, given the lack of complaints after service for many years. The examiner noted that the x-ray finding of calcium deposits in the shoulder in 1985 were of no clinical significance. The examiner again noted that the Veteran had no right shoulder complaints after service until after the fall in 1985 and that the acute fall with pain and limitation of motion was what was significant. Even taking into account the fact that the Veteran gave a history of trauma to the right shoulder in service, this did not change the fact that all of his right shoulder complaints after service occurred after the acute fall in January 1985. The examiner added that the available medical records failed to document any right shoulder problems between discharge and the fall in January 1985. It was noted that the Veteran's medical records documented that he was active and frequently exercised and went to the gym after service. With respect to the back, the Veteran gave a history of a lumbar injury in 1953 when he was pushed up against sand bags. He was not seen or treated for his lumbar condition at that time. A few months later, he was knocked down a hill by an explosion and was thrown against a tree. He was seen and treated in the field and had shrapnel removed from his arm. No lumbar evaluation was performed at this time. Since his discharge in 1954, he gave a history of recurrent lumbar pain. He avoided certain positions that would increase his pain. After service, he worked as a chemical engineer for 38 or 39 years and then formed a consulting company. Since his discharge, he did not have any other lumbar injuries and started treatment for his back problem approximately 25 years earlier related to pain management. He had lumbar surgery in 2009, and his back pain was worse since then. He used a cane for this and other physical problems. He also did lumbar exercises. Flare ups occurred a couple times a week and lasted about an hour when he did not do any activities. The X-ray studies of the spine showed a lower lumbar laminectomy with fusion and 2cm anterior spondylisthesis of L5 on S1. The examiner concluded that the Veteran's lumbar condition was not caused or the result of or otherwise related to his service. The service treatment records did not document any history of lumbar pain or injury. The records documented frequent exercise after his discharge in 1954. There was no documentation of lumbar complaints until 1999 when he presented with acute lumbar pain and was diagnosed with degenerative joint and disk disease. His lumbar pain started over 40 years after his discharge. Even taking into account the Veteran's history of a lumbar injury in service, the examiner noted that there was still no evidence to support the Veteran's claim that his lumbar disorder was related to his service. This was noted to be related to aging. If he had an injury to the lumbar spine in service, chronic complaints since his military service would have been seen earlier than 40 years later. Because it was felt that the examiner had not have given full credence to the Veteran's lay history, the Board obtained an additional opinion concerning the claimed back and right shoulder conditions. After reviewing the claims file, the examiner opined that the Veteran's current right shoulder problems were not related to an injury in service. He explained that, while it was likely that the Veteran did sustain an acromioclavicular subluxation or dislocation in service, his current symptoms were not related to that injury. His stiffness was not related to the injury as AC joint separations did not cause stiffness years after the injury. Biceps tendonitis was not related to the injury. Moreover, if the Veteran's shoulder had become symptomatic due to the acute acromioclavicular subluxation/dislocation, it likely would have become symptomatic enough to seek orthopedic care within a year or two after the injury. While the calcification seen on the X-ray study in 1985 was evidence of the acromioclavicular subluxation/dislocation in service, they were not related to his current disability. In 1985, he suffered a new injury that was most likely the cause of his right shoulder symptoms. With regard to the low back, this too was noted to be unrelated to his military service. If the Veteran had sustained a significant enough injury to his back to cause the amount of degeneration precipitating his back surgery, he would have been carried off the field in a litter and unable to walk and would have been stabilized and returned stateside. He would have been symptomatic from the time of the injury and would have sought care routinely from early on after an injury of such severity. There was no evidence that this was the case. The examiner's impression was that a busy working life and the Veteran's physiognomy put him at risk for lumbar degeneration and precipitated the desire for lumbar reconstructive surgery. With regard to the claimed right shoulder disorder, the recently opinion medical opinion determined that the Veteran injured his shoulder in service and sustained a likely acromioclavicular separation at that time, prior to developing other symptoms due to the documented fall in 1985. This was also corroborated by independent evidence in the form of a credible lay statement provided by another service member. To the extent that he was examined shortly after service in 1955 without exhibiting specific shoulder findings, the Veteran was noted to have had complaints of neck pain and shell fragment wound residuals involving the right upper extremity at that time. While he did not seek treatment for his shoulder until suffering an intervening injury in January 1985 when he fell in the shower, his complaints of having had right shoulder pain since service are found to be credible and largely consistent with the other evidence of record. The VA examination in September 2012 found that the earlier acromioclavicular separation had healed and that the noted calcification was related to that injury. The examiner opined that the Veteran's current symptoms were unrelated to that type of shoulder injury. However, the opinion alone is sufficient to show that the Veteran currently has residual changes involving the right shoulder that are consistent with the type of injury he reported sustaining in connection with his combat service in Korea. After carefully reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran has current right shoulder disability due to a previous acromioclavicular injury that as likely as not was caused by the combat experiences as described by the Veteran. In resolving all reasonable doubt in the Veteran's favor, service connection for right shoulder disability manifested by the residuals of an acromioclavicular injury is warranted. However, based on this record, the preponderance of the evidence is against the Veteran's claim of service connection for a low back disorder. While the Veteran now reports injuring his back in service and having had related complaints thereafter, he is actually shown to have made no mention of low back problems in connection with his separation examination in 1954 or a VA examination in 1955. When examined by VA in December 1985, the Veteran complained of cervical spine, right shoulder, and right forearm manifestations related to service, but made no mention of any problems involving his lumbar spine. There is no medical evidence referable to a lumbar spine disorder until 1999, more than 40 years after service. The treatment records at that time only serve to show the Veteran's reports of experiencing a sudden and recent onset of pain that would be inconsistent with his current assertions of having low back pain since service. The recently obtained medical opinion determined that the Veteran's current back problems were not related to an injury during service, ascribing them instead to age-related degenerative changes. Moreover, to the extent that the Veteran is shown to have degenerative joint disease of the low back, his lay assertions are not found to be credible for the purpose of establishing continuity of symptomatology linking any demonstrated a low back arthritis to the his period of service. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is not applicable in the instant case because the preponderance of the evidence is against the Veteran's claims. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for the residuals of a right shoulder acromioclavicular injury is granted. Service connection for a low back disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs