Citation Nr: 1626919 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 14-36 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from May 1991 to May 1995. These matters come before the Board of Veterans Appeals (Board) on appeal from September 2011 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi and St. Petersburg, Florida. In the September 2011 rating decision, the RO denied the Veteran's claims of service connection for a right shoulder disability, a left shoulder disability, and a low back injury. The Veteran submitted new and material evidence in February 2012 and the claims were readjudicated in the July 2012 rating decision. The Veteran submitted a notice of disagreement in August 2012. As new and material evidence was submitted within one year of the September 2011 rating decision, it was not final and remains the decision on appeal. See 38 C.F.R. § 3.156(b). These claims were previously before the Board in May 2015, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) to afford the Veteran a hearing before the Board. A Board hearing was held in March 2016; a transcript of which is contained within the electronic record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. The issue of entitlement to service connection for a right shoulder disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's low back disorder did not manifest until more than one year following the Veteran's discharge from service and is not etiologically related to service. 2. The Veteran's left shoulder disorder is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. § 3.303 (2015). 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 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), 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 an April 2011 letter, prior to the initial adjudication in September 2011. The record also reflects that all available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. VA medical examinations were conducted in June 2011 and May 2012. The examiners provided adequate opinions that are thorough, consistent with the facts of record, and well-supported. As will be explained further below, the Board finds these opinions to be adequate. Law and Analysis 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 (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). To establish a right to compensation for a present disability, a claimant 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). 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; 38 C.F.R. §§ 3.307, 3.309. 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 (2015); 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. Service treatment records show that in May 1991, September 1992, and April 1995 dental health questionnaires, the Veteran denied arthritis and painful joints. An August 1992 record shows the Veteran complained of neck and right shoulder pain after an injury during a football game. The Veteran also reported low back pain and was diagnosed as having lumbosacral spine spasm. An October 1992 medical history showed popping of the right and left shoulders. In January 1993, the Veteran complained of low back pain after a motor vehicle accident. An x-ray of the lumbar spine was normal. In September 1993, the Veteran sought treatment for left shoulder pain. He reported pain for one week. He was assessed as having left shoulder strain. In January 1995, the Veteran complained of low back pain for one day. He stated that it hurt while he was playing basketball. The Veteran was diagnosed with mechanical back strain, provided with Motrin, activity and lifting restrictions, and instructed to return for a follow-up. The follow-up note shows the Veteran had full range of motion, no tingling or numbness, and was negative for sciatic nerve pain. Upon separation from service, in an April 1995 report of medical history, the Veteran reported having or ever having had "bone, joint or other deformity" and recurrent back pain. He specified that he had one episode of left shoulder strain in September 1993 and two episodes of low back pain. The contemporaneous clinical evaluation of his spine and upper extremities was normal. In post-service June 1996 and September 1998 annual certificates of physical condition, the Veteran denied any physical defects that might restrict his physical performance or prevent mobilization. In a September 2002 treatment record, the Veteran complained of foot pain and back pain. He reported that it comes and goes for quite some time, on and off, and recently began bothering him after exercise or after he went bowling. A physical examination of his back showed tenderness at the left lumbar muscles, with no spasm. The physician assessed low back pain and advised him to do exercises to strengthen the back and prevent future problems. In an August 2007 treatment record for blood in his urine, the Veteran denied any recent pain in his back. A physical examination was within normal limits. Treatment record from January 2008 showed the Veteran complained of neck pain, but stated that it did not extend into the shoulder. No low back or shoulder pain was noted upon examination. A VA examination was afforded to the Veteran in June 2011. The examiner noted bilateral shoulder discomfort since 1992. The Veteran reported that he was playing football and was injured when he was tackled. He went to the emergency room and was treated with Motrin and Flexeril. Since that time, he had SLAP repair surgery on the right shoulder in 2001. The examiner performed a physical examination of the Veteran, including objective testing and diagnosed residuals of right shoulder strain/contusion and residuals of left shoulder strain. The examiner opined that the Veteran's current left shoulder condition is less likely as not caused by or related to the left shoulder strain shown during active duty. As a rationale, the examiner stated that The Veteran was seen one time for left shoulder strain in September 1993 and there was no history of trauma. There were no further records indicating continued or recurrent left shoulder problems while on active duty. There is no listing in CPRS problem list of the veteran having or having complained of left shoulder problems. There are no outside medical records supplied to substantiate a claim of historical or current left shoulder problem(s). Regarding the Veteran's back disorder, the Veteran reported low back discomfort since 1991. He stated that his low back began bothering him while running during boot camo. He believes he then injured his low back playing sports and when he was in a motor vehicle accident on active duty. Upon physical examination, the examiner noted limitation of motion. Radiological studies suggested thoracolumbar dextroscoliosis and early degenerative disease at L5-S1 articular facet. The examiner opined that the Veteran's back disorder is less likely than not incurred in or related to the in-service injury. In support of that opinion, the examiner provided the following rationale: The veteran was seen for low back pain secondary to playing basketball. There was no injury; it just started bothering him while playing basketball. He was diagnosed with Mechanical Lower Back Strain. He was also involved in a low speed MVA in January 1993, when his vehicle was rearended, x-ray was reported as normal, diagnosed with L/S strain. The veteran's separation physical contains an attestation signed by the veteran that "I am presently in good health." No lumbar abnormality was noted on the physical examination. The Veteran submitted an opinion from his private physician, G.B., M.D., dated in January 2012, in which Dr. B. opined that "after reviewing medical records, VA, and other treatment records, and upon examination of the Veteran, it is my professional opinion that his diagnoses of left shoulder, right shoulder, and low back injury are more than likely a result of his military service." The Veteran underwent a VA examination in May 2012. The examiner noted a diagnosis of lumbar strain in 2012. The Veteran reported the following history: he injured his low back in boot camp but did not report it. He reinjured it in a car accident and sought medical treatment. It was treated as a sprain. The Veteran reported that the pain never resolved and he now experiences constant pain. The examiner performed a physical examination of the Veteran and noted limitation of motion and tenderness. Radiological studies show no documented arthritis. The examiner opined that the Veteran's back disorder is less likely than not incurred in or caused by the in-service injury. In support of his opinion, the examiner provided the following rationale: Veteran was seen and treated appropriately and successfully for a back injury in service. His exit exam is silent for back problems. There is no evidence to support existence or chronicity of a back complaint for over 10 years following discharge. His lumbar spine MRI does not correlate with his subjective symptoms and examination. Regarding the Veteran's shoulders, the examiner acknowledged that the Veteran has left shoulder pain but did not note any left shoulder diagnoses. The Veteran reported injuries to his right and left shoulders playing football in service. He contends that the pain never resolved and he now has constant pain on his shoulders. The examiner performed a physical examination of the Veteran and noted localized tenderness on palpation of both shoulders. The Hawkins' Impingement Test was positive on both sides. The examiner opined that the Veteran's bilateral shoulder disorders were less likely as not incurred in or caused by the claimed in-service injuries. In support of his opinion, the examiner provided the following rationale: Veteran was seen and treated appropriately and successfully for shoulder injuries in service. His exit exam is silent for shoulder problems. There is no evidence to support existence or chronicity of left shoulder complaint for over 10 years following discharge. In the Veteran's August 2014 substantive appeal (VA Form 9), he stated that he injured his low back and shoulder while playing football in service and that during service, he complained of numbness down his legs, shoulder pain, and that he was unable to do physical training. He stated that he was told it was muscle spasms and was given Motrin and Flexeril. After his discharge from service, he continued to experience pain but was again told to take Motrin, so the Veteran decided not to seek treatment and pay co-payments when he could purchase Motrin over-the-counter on his own. In a December 2015 private treatment record, the Veteran's chiropractor stated that "the onset of pain was sudden and was first noticed in 8/8/1991. It has been a chronic issue due to his active duty in 1991. Since the complaint began, the symptoms have generally been worse." The chiropractor noted a medical history of an automobile accident in 1992 with no injuries, a military injury of his low back nine years prior, and right and left recreational shoulder injuries. The Veteran appeared at a Board hearing in March 2016. He testified that he injured his shoulder and back during service playing football. He was taken to the hospital for treatment. The Veteran also recalled falling during boot camp. The Veteran reported that he had been in a motor vehicle accident in January 1993, which caused a tingling pain in his spine. The Veteran contended that his back and shoulder pain continued since his discharge from service. The Veteran has evidence of in-service injuries to his low back and left shoulder and current diagnoses of low back and a left shoulder disorder. Therefore, the only question that remains is that of etiology. The Veteran has provided two private opinions in support of his claim. The Board has considered the January 2012 private opinion by Dr.B. However, that opinion is not supported by a rationale. As a result, the Board does not find it to be probative as to the issue of etiology. Nieves-Rodriguez v. Peake, 22. Vet. App. 295 (2008). Similarly, the Board has considered the December 2015 chiropractic record, which states that the Veteran's disorders began in service; however that appears to be based solely on the Veteran's reported history of continuity of symptomatology. As will be discussed, the Board finds the contemporaneous medical evidence to be more probative than the Veteran's statements. Therefore, the December 2015 opinion is not probative as to etiology. The Veteran is competent to testify as to his symptoms. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his diagnosed left shoulder and back disorders, and whether such were caused by his in-service injuries or subsequent to his discharge. See 38 C.F.R. § 3.159 (a)(1) (2015) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Additionally, although the Veteran is competent to report his symptoms, the Board finds that the contemporaneous objective medical evidence, including his service discharge examination, specifically the report where he specified a single episode of left shoulder pain and two episodes of back pain, weigh against his statements that his pain has been chronic since service. Additionally, in 1996 and 1998, the Veteran reported no physical defects. Finally, treatment records dating from 1996 to 2002 do not show a continuity of complaints of back or shoulder pain. A January 1997 medical record noted that the physical examination was within normal limits. In 2002, the Veteran reported low back pain for some time on and off and it seemed to come on when he worked out. However, the Veteran denied back pain in 2007 and denied shoulder pain in 2008. Although the Veteran reported on and off back pain in September 2002, no diagnosis of a disorder was made and there is no competent evidence relating this pain to the in-service injury or current disability. Additionally, the Board finds the May 2011 and June 2012 VA examination reports and opinions to be competent and probative medical opinions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives credence and weight to the VA examiners' opinions as they were rendered after an evaluation of the Veteran, review of the Veteran's history, and consideration of medical principles by a licensed medical professional. The VA examiner took into account the Veteran's lay statements regarding his in-service injuries and complaints and reported that even when considering the in-service injury, it was still the opinion that the Veteran did not have chronic left shoulder or back disorders due to that injury. Furthermore, since no evidence indicates that the Veteran has arthritis that manifested within a year of service, nor has the Veteran alleged this to be the case, the claims cannot be granted based on 38 C.F.R. § 3.303(b). In this regard, it is noted that Veteran denied any physical problems in 1996. In reaching this determination, 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, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert, supra; 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for a low back disorder is denied. Service connection for a left shoulder disorder is denied. REMAND Remand is necessary to obtain clarification of the May 2012 VA examiner's opinion regarding service connection for the right shoulder. Service treatment records show that in an October 1992 medical history, the Veteran reported popping of the right shoulder. The Veteran underwent superior labrum anterior and posterior (SLAP) surgery of the right shoulder in 2003 for instability. At the March 2016 Board hearing, the Veteran testified that he still experiences "popping" of his shoulder. The May 2012 VA examiner opined the Veteran's "right shoulder surgery in 2001, 6 years following discharge was for instability and is much more likely due to a post service injury given he did not report right shoulder instability in service." Given that the Veteran reported right shoulder instability in service and that there is no evidence of a post-service injury, the Board finds this opinion to be inadequate, as it fails to address all the evidence of record. Barr, supra; Daves v. Nicholson, 21 Vet. App. 46, 52 (2007)(if VA undertakes to provide an examination, even if not required to do so, the examination must be adequate). Therefore, remand is required to obtain clarification. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran submit or authorize the release of records related to his right shoulder surgery. Provided that authorization is provided, attempt to obtain identified records. 2. Thereafter, return the claims file to the examiner who conducted the May 2012 VA examination. If he is not available, schedule the examiner for a new VA examination. In either instance, the claims folder must be reviewed in its entirety in conjunction with the examination; if the examiner does not have access to the complete electronic folder, relevant documents must be printed and provided for review. The examiner must opine as to whether it is at least as likely as not that any currently diagnosed right shoulder disorder began in or is related to military service, including the October 1992 report of "popping." The examiner must discuss whether the Veteran's right shoulder SLAP surgery is related to his reports of in-service instability and/or any current instability of the right shoulder. A full and complete rationale for all opinions expressed is required. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs