Citation Nr: 1417067 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 09-44 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active service from March 1978 to May 1978, June 1987 to July 1990, and August 1990 to October 1992. She also had subsequent reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran and her husband testified at an August 2011 hearing before the undersigned Veterans Law Judge. A transcript from that hearing has been associated with the claims file. This case was previously before the Board in April 2012 and was remanded for additional development. The Board finds that there has been substantial compliance with its June 2011 remand with regard to the issues decided herein. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The most probative evidence of record demonstrates that it is at least as likely as not that the Veteran's degenerative joint disease (DJD) of the lumbar spine is etiologically related to active service. 2. The most probative evidence of record demonstrates that it is at least as likely as not that the Veteran's DJD of the left shoulder is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for DJD of the lumbar spine are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for DJD of the left shoulder are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist In this decision, the Board grants entitlement to service connection for DJD of the lumbar spine and of the left shoulder, which constitutes a complete grant of the Veteran's claims. Therefore, no discussion of VA's duty to notify or assist is necessary. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). Service connection for chronic disabilities, including arthritis or DJD, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a) (2013). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lumbar Spine Disability The Veteran contends that service connection for a lumbar spine disability is warranted. The Veteran reported that she injured her back during service, had persistent chronic back pain since that time, and that her persistent back pain is attributable to her currently diagnosed lumbar spine disability. The record clearly demonstrates the presence of a diagnosed back disability. The Veteran was diagnosed with DJD of her lumbar spine at her May 2012 VA examination. Accordingly, Shedden element (1) has been demonstrated. The record also contains credible lay evidence of an in-service injury. At her travel board hearing, the Veteran testified that while unloading equipment from an ambulance during a training exercise, she tripped and injured her back. In a March 2009 correspondence, R. B., a fellow service member who was stationed with the Veteran, stated that she remembered that the Veteran injured her back jumping off an ambulance. Additionally, in an August 2011 letter, the Veteran's husband stated that the Veteran first complained of back pain in approximately 1989 after performing training exercises, which involved loading and unloading ambulances. Accordingly, Shedden element (2) has also been demonstrated. Concerning Shedden element (3), evidence of a nexus between the Veteran's in-service back injury and her current DJD, the Board notes that there are conflicting nexus opinions of record, however, a showing of continuity of symptomatology after service is enough to establish service connection for chronic diseases, such as DJD. 38 C.F.R. § 3.303(b) (2013). In Walker v. Shinseki, the Federal Circuit stressed that continuity of symptomatology provides the necessary medical nexus element for service connection for a listed chronic disease. 708 F.3d 1331, 1339 (Fed. Cir. 2013). In light of the Veteran's competent and credible assertions of continuity of symptomatology, the Board finds that Shedden element (3) has been demonstrated. After a careful review of the record, the Board finds, based upon the medical and satisfactory lay evidence set forth above, that service connection for DJD of the lumbar spine is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). Left Shoulder Disability The record clearly demonstrates the presence of a diagnosed left shoulder disability. The Veteran was diagnosed with DJD of her left shoulder at her May 2012 VA examination. Accordingly, Shedden element (1) has been demonstrated. The record also contains credible lay evidence of an in-service injury. At her travel board hearing, the Veteran testified that she first noticed left shoulder symptoms, such as pain and weakness, during biathlon team training while on active duty at Camp Ashland. She also stated that while on active duty she worked in the medical field and therefore treatment for her left shoulder was not documented in her service treatment records because she was treated informally by her colleagues. The Board finds the Veteran's testimony to be credible. Accordingly, Shedden element (2) has also been demonstrated. With regard to the final element, the Board again notes that a showing of continuity of symptomatology after service is enough to establish service connection. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) (finding that continuity of symptomatology provides the necessary medical nexus element for service connection for a listed chronic disease). The Veteran testified that she had pain and weakness in her left shoulder during and since active service. The Veteran's statements regarding continuity of symptomology are competent and credible. An August 2011 examination report from the Veteran's orthopedic surgeon, Dr. Bozarth, confirmed that the Veteran reported left shoulder pain that had been ongoing for some time. The Board acknowledges the May 2012 negative VA medical opinion. Specifically, the May 2012 VA examiner opined that the Veteran was at an age where her clinical presentation was not outside of the natural history of her diagnosis. He opined that it was less likely than not that her left shoulder was related to her military service. The Board finds that the VA examiner's report is of diminished probative value and therefore is outweighed by the other nexus evidence of record. The examiner stated that the Veteran was at an age where her clinical presentation was not outside the natural history of her diagnosis, and that it was entirely possible that she would have developed her left shoulder disability whether or not she served in the military. He noted that the Veteran was unable to recall when her shoulder pain began, which made it somewhat difficult to be 100 percent certain. The examiner opined that the Veteran's left shoulder disability was less likely than not etiologically related to her military service. The examiner's statement that the Veteran was unable to recall whether or not she had shoulder pain prior to her military service indicates that the examiner either did not consider the Veteran's testimony or overlooked her statements regarding the onset of her symptoms. Furthermore, the examiner's speculative statement, that it was entirely possible that the Veteran would have developed these problems whether or not she had been in the military, undercuts the certainty of his opinion. Accordingly, the Board finds that the Veteran's competent and credible assertion of continuity of symptomatology and the October 2010 nexus opinion from Dr. Kilian weigh in favor of finding a medical nexus between the Veteran's in-service symptoms and her current DJD. Accordingly, the Board finds that Shedden element (3) has been demonstrated. After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board finds, based upon the medical and satisfactory lay evidence set forth above, service connection for DJD of the left shoulder is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). ORDER Entitlement to service connection for DJD of the lumbar spine is granted. Entitlement to service connection for DJD of the left shoulder is granted. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs