Citation Nr: 1515962 Decision Date: 04/13/15 Archive Date: 04/21/15 DOCKET NO. 13-14 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from April 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the claim in February 2014 for further development and consideration. FINDINGS OF FACT 1. The most probative evidence indicates the Veteran's in-service complaint of low back pain resolved without residual disability; there is no competent evidence of arthritis in the lumbosacral spine within one year following discharge from service, and the current low back disability is not shown to be etiologically related to service. 2. The most probative evidence indicates the Veteran's in-service complaint of right shoulder pain resolved without residual disability; there is no competent evidence of arthritis in the right shoulder within one year following discharge from service, and the current right shoulder disability is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The requirements for service connection for a low back disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 2. The requirements for service connection for a right shoulder disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). The RO provided compliant VCAA notice by letter dated in May 2011. The letter advised the Veteran of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Regarding the duty to assist, VA has obtained service treatment records (STRs), post-service treatment records, assisted in obtaining evidence, afforded physical examinations, and obtained medical opinions, which are adequate upon which to base a determination. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board is further satisfied that there has been substantial compliance with its February 2014 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, pertinent post-service treatment records, including Social Security Administration (SSA) records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries, supra. II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis 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, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). The Veteran's STRs note that in October 1972, he complained of pains in his back, shoulder and legs. On the history section of his March 1973 separation examination report, he checked "no" to the questions regarding whether he ever had or currently had arthritis, rheumatism, or bursitis; bone, joint, or other deformity; painful or trick shoulder or elbow; and recurrent back pain. The spine and upper extremities portions of the separation examination were normal. Post-service private treatment records note that the Veteran complained of right flank pain of two-weeks duration in June 2008 due to an incident when playing with his grandson. The Veteran complained of lumbar pain after lifting in January 2009. In April 2011, the Veteran requested service connection for low back and right shoulder disabilities. He stated that he had low back and right shoulder pain after he had to go on long marches with his ruck sack in-service. An SSA decision granted the Veteran disability insurance benefits - effective July 2011, due to disorders of the back and osteoarthritis. A VA examination was conducted in August 2011. After examination and review of the Veteran's claims file, the examiner stated that the Veteran's lumbar spine and shoulder conditions are not caused by or a result of service. The examiner noted that there is no evidence of low back or shoulder conditions in the Veteran's STRs that would indicate that the Veteran had any type of injury or condition to his back or shoulders that would have been chronic. The examiner stated that the one in-service note does indicate pain in back and shoulders but this is not repeated and there is no evidence of a chronic condition after separation from the military. A private magnetic resonance imaging (MRI) dated in November 2011 found mild to moderate L3-L4 through L5-S1 degenerative disc disease most severe at the L4-L5 level with mild bilateral neural foraminal impingement. In a letter dated in February 2012, the Veteran's private osteopath stated that the Veteran complained of an onset of right low back pain, approximately a year ago "when his pain simply started." In April 2012 and January 2014, the Veteran underwent right-sided lumbar facet injections at L3-4 L4-5 and L5-S1 for right-sided low back pain, lumbar facet arthropathy, and lumbar degenerative disc disease. In October 2012, private treatment notes reveal that the Veteran complained of right shoulder pain. He stated that he has had right shoulder issues for a while but it has really been the last three months that has been painful and even weak. He did not relate any injuries. In November 2012, the Veteran underwent a private arthroscopic right rotator cuff repair with subacromial decompression and arthroscopic distal clavicular excision. As noted above, the evidence reflects that the Veteran suffers from current low back and right shoulder disabilities; thus, the first element for establishing service connection has been met. However, before service connection can be established, there must be competent evidence of a link between the current condition and service. Although a lay person is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether he has a current disability and whether that disability is related to service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this regard, musculoskeletal or joint pain can have many causes and requires medical testing to diagnose and medical expertise to determine the etiology thereof. Thus, his opinion that he suffers from current low back and right shoulder disabilities due marching with a ruck sack in service is simply not a competent medical opinion. The Board accords more weight to the medical evidence than to the Veteran's lay assertions. Indeed, the March 1973 separation examination was negative for any complaints or findings of a low back or right shoulder disability. The other evidence fails to show any low back or right shoulder complaints until several decades after separation from service. Although post-service private treatment records as early as 1978 were obtained; the earliest medical evidence of a low back disability is in 2008, and the earliest medical evidence of a right shoulder disability is in 2011. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, the only medical opinion of record addressing the relationship between the current conditions and service is that of the August 2011 VA examiner, and such opinion is against the claim. The Board finds the August 2011 medical opinion persuasive, as it was based on a thorough examination of the Veteran and included a detailed discussion of all relevant facts. The examiner offered a rational and plausible explanation for concluding that the Veteran's low back and right shoulder conditions were not incurred in service or became manifest within one year of separation from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). In sum, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's low back and right shoulder disabilities were not shown in active service or for many years thereafter. Accordingly, service connection for low back and right shoulder disabilities is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs