Citation Nr: 1332216 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-06 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from May 1991 to July 1993. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran's appeal was subsequently transferred to the jurisdiction of the RO in Honolulu, Hawaii. This case was previously before the Board in September 2010, at which time it was remanded for additional development. Subsequent to that remand, the Board, in a decision of February 2012, found that new and material evidence had, in fact, been submitted sufficient to reopen the Veteran's previously-denied claims for service connection for low back and right shoulder disabilities. At that same time, the Board remanded for additional development the issues of entitlement to service connection for low back and right shoulder disabilities on a de novo basis. In a rating decision of March 2013, the RO granted service connection for degenerative joint disease of the cervical spine. It was noted that there were complaints of neck pain in service with positive findings and a recent positive opinion post-service. Accordingly, the issue of entitlement to service connection for chronic neck pain with degenerative joint disease is no longer before the Board. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. A chronic low back disability is not shown to have been present in service, or for a number of years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service. 2. A chronic right shoulder disability is not shown to have been present in service, or for a number of years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service. CONCLUSIONS OF LAW 1. A chronic low back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. § 3.303 (2012). 2. A chronic right shoulder disability was not incurred in or aggravated by active military service, nor may osteoarthritis of the right shoulder be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in December 2006, as well as in June 2007, October 2010, and February 2012, of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. At the July 2010 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, to include testimony presented at a hearing before the undersigned Veterans Law Judge in July 2010, service treatment records, and both VA (including Virtual VA) treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 129-30 (2000). Service Connection The Veteran in this case seeks entitlement to service connection for low back and right shoulder disabilities. In pertinent part, it is contended that the Veteran's current low back and right shoulder disabilities are the result of an incident in service, at which time the Veteran allegedly fell down a ladder. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a Veteran served for ninety (90) days or more during a period of war, and osteoarthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In the present case, service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of chronic low back or right shoulder disabilities. In that regard, while at the time of a service entrance examination in April 1991, the Veteran gave a history of a motorcycle accident in 1987 (prior to service), there is no indication that, at the time of that accident, the Veteran injured his right shoulder. Moreover, an examination of the Veteran's spine and musculoskeletal system, as well as his upper extremities conducted at that time was entirely within normal limits, and no pertinent diagnoses were noted. Significantly, as of the time of a service separation examination in May 1993, the Veteran's spine and musculoskeletal system, as well as his upper extremities, were once again within normal limits, and no pertinent diagnoses were noted. The earliest clinical indication of the presence of potentially chronic low back or right shoulder disabilities is revealed by VA records dated in 2004/2005, at which time the Veteran gave an eight-year history of right shoulder and low back problems, placing the origin of such pathology around or about 1997, approximately four years following the Veteran's discharge from service. After providing that initial history, he subsequently said he had neck and back pain since 1993, in-service. Significantly, while following VA examinations in August 2007, the Veteran received diagnoses of degenerative arthritis of the right shoulder and lumbosacral strain, no opinion was offered linking either of those disabilities to the Veteran's period of active military service. The Board observes that, following recent VA examinations in September 2012, the Veteran once again received diagnoses of lumbosacral strain and degenerative joint disease of the right acromioclavicular joint (shoulder). However, at the time of those examinations, it was the opinion of the examiner that the Veteran's right shoulder and low back disabilities were less likely than not incurred in or caused by a claimed inservice injury, event, or illness. Regarding the Veteran's right shoulder disability, the examiner indicated that a review of the Veteran's claims folder and, in particular, his service treatment records, failed to note any right shoulder conditions or complaints during service. Moreover, the Veteran's reported fall in 1992 was not evident anywhere in his medical records, and was not recorded by any evaluation conducted on board the Veteran's ship, even though there were fairly numerous evaluations conducted. According to the examiner, if the Veteran did suffer a fall from 25 feet (as reported in his claims folder), it was possible that he could have injured his right shoulder. However, since there was no documentation of any fall, or any documented evaluation of a right shoulder condition, such a conclusion would be the result of mere speculation. According to the examiner, the Veteran's first documented complaint of shoulder pain was on a nursing triage note dated in February 2005, noting shoulder pain which had reportedly been ongoing for one month with a history of degenerative arthritis. Moreover, on VA examination in February 2005, there was noted a complaint of shoulder pain in conjunction with an eight-year history of pain, though with no recollection of any past injury. In the opinion of the examiner, given that the Veteran's shoulder pain was reported to have been present for the past eight years, it would have placed the onset of that pain at about 1997, which was four years following the Veteran's discharge from service. However, since that time, the Veteran had undergone multiple evaluations for right shoulder pain, with radiographic studies showing right acromioclavicular joint degenerative joint disease. Based on available records, it was the opinion of the examiner that there was no nexus linkage to service, and that the Veteran's right shoulder acromioclavicular joint degenerative joint disease was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. Nor could the examiner attribute the Veteran's right acromioclavicular joint degenerative joint disease as being in any way related to his claimed 25-foot fall down a ladder, given that there was no evidence of the Veteran having suffered such an injury. Regarding the Veteran's lumbosacral strain, the examiner indicated that a review of the claims folder and, in particular, the Veteran's service treatment records, failed to note any low back condition or complaint during service. Once again, the Veteran's reported fall in 1992 was nowhere to be found in his medical records, and was not recorded by any evaluation conducted on board the Veteran's ship, even though there were fairly numerous evaluations of record. According to the examiner, if the Veteran did suffer a fall from 25 feet (as reported in his claims folder), it was possible that he could have injured his back. However, since there was no documentation of any fall, or any documented evaluation for a low back condition, such a conclusion would be the result of mere speculation. The examiner indicated that the first documented complaint of low back pain was on a VA examination in 2005, at which time the Veteran gave a history of back pain for the past eight years, once again placing the onset of that pathology around or about 1997, which was four years following the Veteran's discharge from service. However, since that time, the Veteran had undergone multiple evaluations for low back pain, including radiographic studies and magnetic resonance imaging, all of which were reported as normal, culminating in a diagnosis of lumbosacral strain. In the opinion of the examiner, based on available records, there was no nexus linkage to service, with the result that the Veteran's lumbosacral strain was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. Nor could the Veteran's lumbosacral strain be attributed to his claimed 25-foot fall down a ladder, given that there was no evidence of the Veteran ever having suffered from such an injury. The Board finds the aforementioned opinions of a VA examiner highly probative, because those opinions were based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and a full examination, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion). The VA examiner reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided a well-reasoned medical opinion, and alluded to the evidence which supported that opinion. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative evidence of record fails to establish that the Veteran's lumbosacral strain and/or degenerative arthritis of the right shoulder had their origin during his period of active military service, or are otherwise causally related to that period of service. In evaluating the Veteran's claim, the Board has the duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed his current low back and right shoulder disabilities to a fall down a ladder in service. However, and as noted above, there currently exists no persuasive evidence that the disabilities in question are in any way causally related to an incident or incidents of service, including an inservice fall. The Board acknowledges the Veteran's statements and testimony regarding the origin of his current low back and right shoulder disabilities. However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate those disabilities to an inservice incident or incidents. The Veteran's statements and history, it should be noted, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Moreover, the Veteran, as a layperson, is not competent to establish a "cause and effect" relationship between his current disabilities and some incident of service. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the board is unable to reasonably associate the Veteran's current low back or right shoulder disabilities with any incident or incidents of his period of active military service. Accordingly, service connection for those disabilities must be denied. ORDER Entitlement to service connection for a chronic low back disability is denied. Entitlement to service connection for a chronic right shoulder disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs