Citation Nr: 1326370 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-28 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left shoulder disability. (The issue of entitlement to a rating greater than 10 percent prior to March 15, 2011, for a left knee disability is addressed in a separate document.) REPRESENTATION Appellant represented by: Michael Steinberg, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to July 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in February 2011. A transcript of the proceeding is of record. When this case was before the Board in January 2012, it was decided in part and remanded in part. While the case was in remand status, the issue of entitlement to service connection for left hip disability was resolved by a February 2013 rating decision granting the complete benefit sought. FINDINGS OF FACT 1. A back spine disability was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service, and was not caused or aggravated by service-connected disability. 2. A left shoulder disability was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service, and was not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in a letter mailed in February 2007, prior to the initial adjudication in June 2007. The record also reflects that all service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in January 2013, and probative opinions (i.e. opinions supported by a detailed rationale) have been obtained with respect to the etiology of the disabilities at issue. Moreover, there has been substantial compliance with the Board's January 2012 remand directives. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of the claim for service connection for back disability, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation in deciding the Veteran's back claim. The amended version of the regulation, set forth below, applies to the Veteran's left shoulder claim. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a no service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Back Disability The Veteran contends that his lumbar spine disability is due to the altered gait caused by the service-connected left knee disability. See January 2007 claim; February 2011 hearing transcript. The report of the February 1980 entrance examination reflects the Veteran's history of a back sprain in 1979, from which he had recovered. Examination revealed normal clinical findings and the Veteran's negative history as to recurrent back pain. Examinations in March 1982 and September 1983 also revealed normal clinical findings and negative histories as to recurrent back pain. A May 22, 1986, emergency treatment record reflects the Veteran's history of low back pain after pushing a pallet. He denied any prior episodes of back pain. Examination revealed mild tenderness in the lumbosacral paraspinous muscles. The Veteran was diagnosed with low back sprain and sent to his quarters for 72 hours. A May 25, 1986, treatment record reflects the Veteran's history of low back pain since Friday. He reported that he felt better though he still had pain with deep bends. The Veteran denied tingling or numbing of the feet. Examination revealed pain with deep palpation over the paraspinous muscles and flexion at 60 degrees. The Veteran was assessed with resolving low back spasm and returned to duty. The September 1989 examination record reflects normal clinical findings for the spine and no history indicative of a lumbar spine disability. A February 1993 VA examination record reflects the Veteran's history of periodic back spasms. He also reported "periodic" or "sporadic" back pain from pushing heavy materials. X-ray images were normal as was gait. After examination, the Veteran was assessed with lumbago. May 1998 VA treatment records reflect the Veteran's three-day history of low back discomfort and pain radiating from the left hip down the left leg. He explained that he woke up with back pain the day after driving to Georgia to help put up tents. The physician diagnosed, "likely low back injury, a twist versus strain," noting that "multiple other etiologies must be considered in a 38-year old individual." X-ray imaging revealed mild loss of intervertebral disc space height at L5-S1with no other evidence of acute abnormality. A January 2000 VA treatment record reflects the Veteran's history of radicular low back pain since feeling a "pop" in his lower back while bending over to tie his shoes. The Veteran was assessed with lumbar disc disease. A March 2000 VA treatment record reflects the Veteran's history of recurrent low back pain beginning about 10 days earlier. He explained that the pain began in the left side of the low back but shifted to the left hip and radiated down the left leg. He reported injuring the low back during service and having nonradicular low back pain for over eight years and radicular pain for approximately six months. The Veteran was diagnosed with "low back pain, chronic, recurrent, possible radiculopathy." A September 2001 VA treatment record reflects the Veteran's "long history of arthritis in the lower back and back pains," which had increased in the previous two to three months. The Veteran reported that he "sometimes" had to lift heavy loads as part of his job. Examination revealed severe spasm in the right lumbar area. X-ray imaging of the lumbar spine revealed mild to moderate osteoarthritis. See, e.g., September 2001 VA X-ray report; March 2002 VA treatment record. A November 2001 VA treatment record reflects the Veteran's history of chronic low back pain. The physician noted that the Veteran had mild arthritis. A June 2002 VA treatment record reflects the Veteran's history of chronic low back pain, foot pain, and right shoulder pain. The Veteran reported a motor vehicle accident four years earlier and indicated that "it felt bad since then, [though he was] feeling worse now and his low back pain is as bad as it has ever been." The physician diagnosed chronic total body pain, worse in the right shoulder, the low back, the hips, and the feet augmented by the traumatic arthritis from a motor vehicle accident four years earlier. Subsequent records reflect continued complaints pertaining to the lumbar spine, with diagnoses including low back pain, stenosis, osteoarthritis, and spondylosis. A June 2006 VA examination record reflects a finding of normal gait. An April 2007 VA examination record reflects the Veteran's history of low back pain since "years ago" which he believed was related to years of heavy lifting during service. Examination revealed minimal favoring of the left lower extremity. The examiner diagnosed mild to moderate degenerative disc disease with chronic low back pain. The examiner opined that it was less likely that the lumbar spine disability was related to injuries incurred in service or the knee disability. The examiner explained that the opinion was based on the minimal injury in the claims file. The examiner added that the Veteran "seem[ed] to be legitimate," but without other more significant injuries documented," the examiner could not relate the current low back disability to the single injury in service. Furthermore, the examiner found the low back pain was not secondary to the knee disability because the Veteran claimed back pain at the time of discharge, he did not relate the two conditions at the time of examination, and gait was only minimally abnormal on examination. A December 2009 VA joints examination record indicates that the Veteran had a normal gait. A January 2013 VA examination record reflects diagnoses of lumbar spondylosis, spinal stenosis, and sciatica. The Veteran denied any "serious" low back injuries prior to or during service. He reported a long history of low back problems but was unsure of the date of onset, though he remembered having low back pain since at least 2001. The examiner determined that it was less likely than not that the lumbar spine disability was present in service or was caused by service. The examiner explained that the service medical records failed to document injury to the lumbar spine of sufficient severity to cause long-term structural damage and that there was no documentation of chronicity of the lumbar spine disability since service. The examiner found it more likely than not that the current lumbar spine disability was due to civilian trauma or overuse. The examiner also determined that it was less likely than not that the lumbar spine disability was proximately due to or the result of a service-connected condition or was aggravated by a service-connected disability. The examiner explained that the record failed to reveal persuasive evidence that the service-connected disabilities would be likely to cause the back condition. The examiner reiterated that the record led to the opinion that the lumbar spine disability was more likely caused by civilian injury or overuse. The examiner added that the Veteran's gait was minimally antalgic and unlikely to cause unilateral joint dysfunction. The examiner found it, "very difficult to postulate a credible pathophysiological explanation for how a knee [or shoulder] condition could cause a spinal disorder of the type and severity this veteran has." Again, the examiner indicated that the evidence showed that the current back condition was more likely related to injuries/overuse in civilian life. Following the review of the evidence, the Board must conclude that service connection is not warranted for the Veteran's back disability. Initially, the Board finds the preponderance of the evidence shows that the current lumbar spine disability was not present until more than one year following the Veteran's discharge from service. The service treatment and examination records and 1993 VA examination record do not reveal the diagnosis of degenerative joint or disc disease. The Board acknowledges that the records reflect treatment for low back pain and spasm in May 1986 and histories of periodic low back pain and spasms in 1993. The Board finds these histories are competent and credible, and thus probative, evidence of intermittent low back pain during and after service. The Board finds the histories are not probative evidence of a chronic low back disability, such as degenerative joint or disc disease, during service or within a year of separation from service, however. The Veteran is not competent to diagnose a chronic lumbar spine disability manifested by intermittent pain as opposed to a distinct episodes of pain or even multiple episodes of acute disorder manifested by pain, and based on the Veteran's histories that the pain only occurred with heavy lifting/pushing rather than idiopathically; the absence of a diagnosis of a disability until more than seven years after service, although the Veteran underwent a VA examination in 1993; the evidence that the radicular symptoms associated with the current disability began in 2000 after a "pop" in the spine; and the VA examiners' determinations that the current lumbar spine disability was not incurred in service, the Board finds that the preponderance of the evidence establishes that no chronic back disorder was present until more than one year after the Veteran's discharge from service. The preponderance of the evidence also shows that the lumbar spine disability was not caused by service. VA examiners have provided probative opinions (i.e. opinions supported by a rationale which is consistent with the record) that the back disability was not caused by service. There is no contrary medical opinion of record. Although the appellant might believe that his lumbar spine disability is related to service, to include heavy lifting associated with service as an air cargo specialist, his assertion of a relationship is not competent evidence of a nexus: the record does not suggest the appellant, who is a layperson, is competent to determine the cause of the lumbar spine disability. The preponderance of the evidence also shows that lumbar spine disability was not caused or aggravated by a service-connected disability, or any associated altered gait. The January 2013 VA examiner provided probative opinions that the lumbar spine disability was not caused or aggravated by the service-connected left knee disability, in part because there is only evidence of a minimally altered gait. There is no contrary medical opinion of record. The Board acknowledges that the Veteran believes his lumbar spine disability is due to the altered gait associated with his service-connected orthopedic disabilities, notably his left knee disability. There are no medical findings of record suggestive of such a link, however, and the evidence does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to make that determination. Thus, the Veteran's statements are not probative evidence of a link between the lumbar spine disability and the service-connected left knee disability. Accordingly, service connection is not warranted for a back disability. Left Shoulder Disability The Veteran contends that he has a left shoulder disability as a result of service, specifically as a result of working as an air cargo specialist, which required heavy lifting, during service. He has also contended that the left shoulder disability is secondary to the service-connected right shoulder disability because he used the left shoulder more to compensate for the impairment caused by the right shoulder disability. See January 2007 claim; February 2011 hearing transcript. The service treatment records reflect no findings or histories indicative of a left shoulder disability; March 1982, September 1983, and September 1989 records reflect normal clinical findings for the upper extremities, and the March 1982 and September 1983 examination records reflect negative histories as to "painful or trick' shoulder." The Board acknowledges that a May 1984 physical profile report indicates that the Veteran was not to lift more than 15 pounds or work with his arms overhead due to shoulder strain. Although the physical profile report does not specify which shoulder was affected, a service treatment record dated earlier that month documents that the sprain affected the right shoulder. As such, the Board finds the service treatment records do not document any evidence of a left shoulder disability. A June 2003 VA treatment record reflects the Veteran's history of degenerative arthritis in the shoulders. January 2005 VA treatment records reflect histories of shoulder pain. X-ray imaging revealed mild degenerative changes in the left acromioclavicular joint. February 2005 VA treatment records reflect the Veteran's "long" history of left shoulder pain that was causing "problems with some movement." The records note that the left shoulder was "much worse than the right" and caused limitation on abduction of greater than 90 degrees on physical examination. Rotator cuff tendinitis with impingement and acromioclavicular joint degenerative joint disease were diagnosed. Subsequent records reflect continued treatment for the left shoulder, and the Veteran underwent a decompression in March 2007. An April 2007 VA examination record reflects the Veteran's history that the shoulders had "been bothersome since military service." He did not remember any specific inciting event and believed it was due to years of overhead lifting. The record notes that the Veteran recently underwent a left shoulder subacromial decompression. After examination and review of radiographs, status-post left shoulder subacromial decompression was diagnosed. The examiner opined that because the Veteran maintained employment as a carpenter after separation, it was likely that his shoulder conditions were adversely affected by the demands on his body from his chosen vocation. The examiner added that it was more likely than not that the shoulder disabilities were independent of one another and more likely the result of the labor he performed after separation from service. A January 2013 VA examination record reflects diagnoses of status-post shoulder surgery for impingement/rotator cuff injury, rotator cuff tendonitis, and degenerative joint disease. The Veteran reported a history of injuring his shoulders prior to service as the result of motorcycle accidents. The Veteran denied dislocation or fracture, and the examiner indicated that the description suggested that the injury was a sprain. The Veteran indicated that he developed problems with the left shoulder "several years ago," though he was not certain of the precise date of onset. The examiner determined that it was less likely than not that the left shoulder disability was present in service or was caused by service. The examiner explained that the service medical records failed to document injury of the left shoulder of sufficient severity to cause long-term structural damage and there was no documentation of chronicity of a left shoulder disability since service. The examiner found it more likely than not that the current left shoulder disability was due to civilian trauma or overuse. The examiner also determined that it was less likely than not that the left shoulder disability was proximately due to or the result of service-connected condition or was aggravated by a service-connected disability. The examiner explained that the record failed to reveal persuasive evidence that the service-connected disabilities would be likely to cause his left shoulder condition. The examiner reiterated that the record led to the opinion that the left shoulder disability was more likely caused by civilian injury or overuse. The examiner added that the orthopedic notes and test results circa 2007 showed that both shoulders were suffering from impingement, and neither was markedly worse than the other was, and that although both shoulders were symptomatic in 2007, the left shoulder surgery was done first, presumably because it was the more symptomatic. The examiner reported that this clinical pattern is not indicative of a unilateral right shoulder condition becoming so severe that it eventually caused a left shoulder condition. Service connection is not warranted for a left shoulder disability. Initially, the Board finds the preponderance of the evidence shows that it was not present until more than one year following the Veteran's discharge from service. The service treatment and examination records reflect no findings or histories indicative of a left shoulder disability, the earliest reported diagnosis of record dates more than 10 years after active service, and the Veteran has generally reported a post-service onset of the left shoulder disability. The Board acknowledges that the Veteran reported an in-service onset of the problems affecting the shoulders at the April 2007 VA examination. The Veteran subsequently indicated that he was unsure as to the date of onset of the left shoulder symptoms and has otherwise never reported in-service symptoms involving the left shoulder, however, and based on the lack of evidence suggestive of a left shoulder problem prior to 2003, though the record includes treatment for the right shoulder, the Board finds the April 2007 history is not credible, and thus, not probative evidence of left shoulder symptoms during service. The preponderance of the evidence also establishes that the Veteran's left shoulder disability is not related to service, to include the Veteran's service as an air cargo specialist. The January 2013 VA examiner has provided a probative opinion (i.e. an opinion supported by a rationale that is consistent with the record) that the left shoulder disability is not related to service. There is no contrary medical opinion of record. Although the appellant might believe that his left shoulder disability is related to his service as an air cargo specialist, his assertion of a relationship is not competent evidence of a nexus: the record does not include a probative history of continuity of symptomatology, the Veteran performed similarly labor-intense activities outside of service, and the record does not otherwise suggest the appellant, who is a layperson, is competent to determine the cause of the left shoulder disability. The preponderance of the evidence also shows that left shoulder disability was not caused or aggravated by the service-connected right shoulder disability. VA examiners have provided probative opinions (i.e. opinions supported by a rationale which is consistent with the record) that the left shoulder disability was not caused or aggravated by the service-connected right shoulder disability, and there is no contrary medical opinion of record. The Board acknowledges that the Veteran believes his left shoulder disability is due to the right shoulder disability. There are no medical findings of record suggestive of such a link, however, and the evidence does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to make that determination. Thus, the Veteran's statements are not probative evidence of a link between the left shoulder disability and the service-connected right shoulder disability. Accordingly, service connection is not warranted for a left shoulder disability. ORDER Service connection for a back disability is denied. Service connection for a left shoulder disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs