Citation Nr: 1800560 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-28 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim seeking service connection for a shoulder disability. 2. Whether new and material evidence has been received to reopen a claim seeking service connection for a back disability. 3. Whether new and material evidence has been received to reopen a claim seeking service connection for a neck disability. 4. Entitlement to service connection for a shoulder disability. 5. Entitlement to service connection for a back disability. 6. Entitlement to service connection for a neck disability. 7. Entitlement to service connection for right arm and wrist/hand condition. 8. Entitlement to service connection for a left leg disability, to include left tibia/fibula fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1978 to July 1981. These matters come before the Board of Veterans' Appeals (Board) from July 2009 and June 2010 and October 2012 rating decisions of the New York Regional Office (RO) of the Department of Veterans' Affairs (VA). The July 2009 rating decision denied reopening of claims for service connection for low back, disability, neck, disability and shoulder disability. The June 2010 rating decision was issued in response to the Veteran's request for reconsideration of the July 2009 decision and denied service connection for neck, back and shoulder disability on the merits. The October 2012 rating decision was issued in part in response to the Veteran's request for reconsideration of the June 2010 decision and denied reopening of the claims for service connection for neck, back and shoulder disability. This decision also denied service connection for right arm and wrist disability and for left tibia fracture. The Board is reopening the claims for service connection for neck, back and shoulder disability and will then consider these claims on the merits. The Veteran is not prejudiced by this action as the RO did already adjudicate each of these claims in the June 2010 rating decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In a January 2002 rating decision, the RO most recently issued a final denial of claims for service connection for neck, back and shoulder disability. 2. The evidence added to the record since the January 2002 decision relates to an unestablished fact that is necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. Neck, shoulder and back disabilities did not become manifest in service or for many years thereafter and are not shown to be related to service. 4. Right arm and wrist disabilities did not become manifest in service or for many years thereafter and are not shown to be related to service. 5. The Veteran is not shown to have a current left tibia or fibula disability. CONCLUSIONS OF LAW 1. As the evidence received subsequent to the January 2002 rating decision is new and material, the criteria for reopening the claims for service connection for neck, back and shoulder disability have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.102, 3.156 (2017). 2. The criteria for entitlement to service connection for neck, back and shoulder disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for entitlement to service connection for right arm and wrist disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for left tibia fracture are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in a letter sent to the Veteran in January 2010 and September 2012. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service treatment records, service personnel records and available post-service medical records are associated with the claims file. VA did provide an adequate examination in this case in relation to the Veteran's claim for service connection for left leg disability. Also, VA had no duty provide examinations in relation to the other service connection claims decided herein because, as explained below, the evidence does not establish that the Veteran suffered any back, neck, shoulder, right arm/wrist/hand injury during service. Thus, a VA examination in relation to these claims was not necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159I(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Analysis A. Claims to reopen for service connection for low back, neck and shoulder disability The basic procedural history pertaining to these claims is as follows. In a November 1998 decision, the Board denied service connection for a low back disorder, finding that the Veteran's claim was not well grounded. In so doing the Board determined that the Veteran did not have a low back injury during service and was not shown to have a current low back disability. The Veteran did not appeal this decision and it became final. See 38 U.S.C.A. § 7104. In a February 1999 rating decision, the RO denied reopening of the claim for service connection for low back disability. Again the Veteran did not appeal this decision and it became final. See 38 U.S.C.A. § 7105. In a January 2002 rating decision, the RO once again denied reopening of the claim for service connection for low back disability and also denied service connection for neck disability and shoulder disability. The Veteran did not appeal this decision and it became final. Id. In a July 2009 rating decision, the RO denied reopening of the claims for service connection for low back disability, neck disability and shoulder disability. In a September 2009 statement, the Veteran requested reconsideration of the July 2009 decision. In a June 2010 rating decision, the RO reconsidered the July 2009 rating decision but denied service connection for low back disability, neck disability and shoulder disability on the merits. In July 2010, the Veteran requested reconsideration of the June 2010 rating decision. In a July 2012 rating decision, the RO denied reopening of the claims for service connection for back condition, neck condition and shoulder condition, finding that new and material evidence had not been received. The Veteran then perfected an appeal of this decision to the Board. The Board notes that the threshold for reopening a claim for VA benefits is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Also, for purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the January 2002 decision, the Veteran has submitted some new statements, which contain allegations concerning experiencing neck, back and shoulder injury in service, which are not entirely cumulative and which relate to an unestablished fact necessary to substantiate the claim (i.e. injury in service). Accordingly, under the low threshold noted in Shade and resolving reasonable doubt in the Veteran's favor, this evidence is new and material and the claims for service connection for low back disability, neck disability and shoulder disability may be reopened. 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110, 117 (2010). B. Service connection for low back disability, neck disability and shoulder disability The Veteran's continued contention is that he suffered a completely debilitating back, neck and shoulder injury while serving aboard the USS Coral Sea. In November 1997 correspondence, he reported that he injured his back while serving aboard ship in 1980 through 1981. He noted that the injury that took place in service basically kept him from performing more physically demanding labor but that after a car accident in 1993 he was in much worse shape. He indicated that a treating physician informed him that the car accident not only reinjured both his lower and middle spinal injuries but also caused damage to at least 5 vertebrae in his neck, ripped a rib loose from his back bone and caused some nerve damage to his hands and arms. Also, in subsequent January 1998 correspondence the Veteran noted that when he was discharged from service, he was examined as part of his physical and was informed by the physician in charge that his back injury was much greater than he thought and that it would cripple him for life. Additionally, on the a January 1998 Form 9, the Veteran indicated that the injury on the U.S.S. Coral Sea actually resulted in severe damage to his left shoulder, several vertebrae in his neck, a couple of vertebrae in his middle back and several vertebrae in his lower back. The Veteran indicated that at that time he was sent immediately to personnel where a "claim" was filed, stating that he was 100% disabled and that this document was added to his records. Additionally, on his October 1998 Form 9, the Veteran indicated that he had his records "sealed or closed" after his claim was filed following his injury on the U.S.S. Coral Sea to ensure that the injury (i.e. broken back, neck and shoulder) would not appear on his DD-214. Further, on a June 1999 application for correction of his military records, the Veteran indicated that he had his neck, left shoulder and back broken while on duty aboard the USS Coral Sea in 1981. Then, in an April 2001 statement, the Veteran clarified that the injury took place in the first quarter of 1981 while aboard the USS Coral Sea. Subsequently, in an October 2008 statement, the Veteran indicated that the injury occurred on the U.S.S. Coral Sea early in 1981. He noted that the accident happened when a young squadron-mate (E3, R.S., acting as the safety man) did not check to see if the bomb rack latch had fastened and locked properly. Thus, when he tried to put the safety pin in it caused the lock to open fully, releasing a 1000 pound bomb. The Veteran reported that the bomb fell rather rapidly and broke his neck, and left shoulder, which crushing almost every vertebrae in his spine except the last four in his tailbone and about four at the base of his skull. Also, in a March 2009 statement, the Veteran indicated that he had previously obtained information from the medical records of the USS Coral Sea for the months of February and March 1981 and that these logs had shown that his injury aboard ship occurred during this time frame. Additionally, in July 2009 statement, the Veteran indicated that he had actually been mistaken about the time of his injury and that it actually occurred sometime in April or May 1980. The medical evidence does show that the Veteran has current low back disability as exemplified by a September 2015 VA treatment records showing a diagnoses of chronic back pain-degenerative joint disease and facet arthropathy. The Veteran is also shown to have a current disability of the neck/cervical spine. This is exemplified by a 2010 cervical spine MRI, which produced an impression of neck pain due to herniated nucleus pulposus at multiple cervical levels with canal stenosis and MRI findings of myelomalacia. Additionally, a May 2016 VA prosthetics record shows that the Veteran was prescribed braces for his bilateral shoulder pain, indicating that he does have disability of both shoulders. However, there is no indication in the medical records of any injury to the back, neck or shoulders during service. The service treatment records do not show that the Veteran suffered any back, neck or shoulder problems during service. In this regard, a February 1981 service treatment record indicates that the Veteran was given a physical at that time prior to being placed in confinement for disciplinary violations. At the physical, there were no complaints or findings of any neck, shoulder or back problems. The examiner concluded that the Veteran appeared apprehensive but otherwise fit for confinement. Also, a March 1981 service treatment record shows that the Veteran was found to have a right inguinal hernia. It was noted that he was leaving the ship that morning with the air wing. Thus, there was no time to do a herniorhapthy on ship and the Veteran would have to be given a referral for the procedure to be done at a later date. Additionally, at the Veteran's July 19, 1981 spine and musculoskeletal system were found to be normal, with no neck, back or shoulder problems noted. Additionally, the examining medical professional specially found that the Veteran was qualified for release from active duty and to perform all of the duties of his rate at sea and on foreign shores. This clearly tends to indicate that at the time of his separation from service, the Veteran was not 100 percent disabled but rather, able-bodied. A July 24, 1981 note then indicates that the Veteran's medical health record was closed due to his release from active duty. Also, the Veteran's personnel records show that he was subject to a significant amount of disciplinary action. In a January 30, 1981 notation of commanding officer's non-judicial punishment, it was noted that the Veteran had committed offenses on December 25 and 26, 1980 and on January 14, 20, 28, 29, 30, 1981. Then, in a subsequent April 7, 1981 notation of such punishment, it was noted that the Veteran committed offenses on March 29, 31, 1981 and April 7, 1981. Additionally, in a July 23, 1981 notation, it was noted that the Veteran was not eligible for reenlistment due to a misconduct discharge for frequent involvement of a disreputable nature with military authorities. In addition, in November 1981, the Veteran claimed service connection for inguinal hernia. On the claim form, he indicated that he was placed in the Correctional Custody Unit on March 9, 1981. He noted that his physical stress became worse from that point and that eventually his instructors became concerned about his slowness and referred him to the USS Coral Sea sick bay, where he was diagnosed with swelling and pain in the groin that was found to be a hernia. The above summarized medical evidence does not show that the Veteran suffered any back, neck or shoulder injuries during service and also indicates that at the time the Veteran separated from service, his neck, back and shoulders were normal. Notably, the Veteran is competent to report experiencing an injury in service. However, the Veteran's reporting has been inconsistent and strongly in conflict with the documentation from his service treatment records. In this regard, in his November 1997 statement, he described the injury that allegedly occurred aboard the USS Coral Sea as involving only the back, indicating that it was his much later auto accident in 1993 caused damage to at least 5 vertebrae in his neck, ripped a rib loose from his back bone and also caused some nerve damage to his hands and arms. However, in later statements, he has indicated that the alleged injury aboard ship resulted in fractures to his neck, back and shoulder. Also, the Veteran has described the injury as either taking place in April 1980 or in the first quarter of 1981 and that it was "totally disabling." Yet, regardless of whether the alleged injury took place in the spring of 1980 or the early part of 1981, the official documentation of record, including both the service treatment records and the personnel records indicates that the Veteran continued on active service until his separation in July 1981. If he had in fact fractured so many vertebrae in his neck, thoracic and lumbar spine and had also fractured his shoulder, resulting in him becoming "100% disabled", it stands to reason that he would not have been able to continue to serve on active duty and he could not possibly have been found "qualified to perform all duties of his rate at sea and on foreign shores" during his July 1971 separation examination. Also, even assuming arguendo that the Veteran did suffer these fractures at some point during service but was able to recover from them and continue to serve on active duty, his service treatment records would reflect the prior injury in some fashion. In particular, with a history of such a profoundly serious injury, the July 1971 separation examination would have at least determined whether the Veteran had any residuals from the neck, shoulder and back fractures. Additionally, if the alleged injury had happened prior to the February 1981 confinement physical, this assessment would have similarly considered whether the Veteran had any residual neck, back or shoulder problems from the fractures as part of the determination as to whether he was fit for confinement. Thus given the Veteran's inconsistent reporting on what body parts were allegedly injured; given the lack of accordance between this reporting of and his ability to continue on active duty; and given the lack of accordance between the reporting and the physical assessments contained in the service medical records, the Board does not find credible his report of injuring his neck, back and shoulder in service. Consequently, the Board credits the information contained in the service treatment records indicating that his neck, back and shoulders were not injured during service and were normal at the time of separation. In regard to whether the current neck, shoulder or back disabilities could be considered as otherwise related to service, the Board also notes that post-service, the earliest medical evidence of any neck, shoulder or back problems dates back no farther than 1992, approximately 11 years after service. (Thus, arthritis of these areas was not shown during the first post-service year so as to warrant presumptive service connection). In this regard, a June 1997 vocational rehabilitation screening indicates that the Veteran had fractured both arms in 1992 (this appears to be the approximate date that the Veteran suffered his post-service auto accident). Treatment records from June 1997 then reveal that the Veteran had complaints of neck and left shoulder pain. Also, a July 1997 treatment record revealed a diagnosis of cervical spondylosis. Additionally, the Veteran reported a history of neck pain for approximately the past two years subsequent to a motor vehicle accident. Notably, a lengthy interval of time between service and initial postservice manifestation of a "disability" for which service connection is sought is a factor against a finding that the disability was incurred or aggravated in service. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has also essentially asserted that he has had continuity of neck, shoulder and back symptomatology since service and is competent to make this assertion. However, this assertion stems from his reporting of injury to these areas in service resulting in continued 100 percent disability. As explained above, the reporting of this injury is not credible. Consequently, the reporting of continuity of symptomatology stemming from the reported injury is also not credible. Thus, the Board credits the medical history indicated by the medical evidence of record indicating that neck, shoulder and back disability did not become manifest at any time prior to 1992. Further, there is no medical evidence, which even suggests that any current back, neck or shoulder disability is otherwise related to service. Moreover, to the extent that the Veteran is alleging that any such disability is otherwise related to service (on a basis other than continuity of symptomatology), as a layperson, without any demonstrated expertise concerning the etiology of neck, back or shoulder disability, such an allegation may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, the Veteran is shown to have disability of the back, neck and shoulder. However, he is not shown to have incurred any injury to these areas during service, arthritis was not shown to be manifest during the first post-service year and these disabilities are not otherwise shown to be related to service. Accordingly, service connection for neck, shoulder and back disability is not warranted. 38 C.F.R. § 3.303, 3.307. 3.309; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Alemany v. Brown, 9 Vet. App. 518 (1996). B. Right arm, right wrist/hand In a January 2012 statement, the Veteran reported that while unloading a 500lb bomb off the wing of a jet with 2 other shipmates during service aboard the U.S.S. Coral Sea, the shipmate on one side lost control of a portion of the bomb. As a result all of the weight of the bomb was transferred to the Veteran, causing his right hand and arm to be pinned underneath it. The Veteran indicated that this caused fractures of the right hand and arm and that he currently continued to have problems with the hand and arm due to the fractures Notably, the service treatment records do not show any problems with the right arm or wrist. There were no complaints or findings of right arm or wrist issues during the February 1981 confinement physical. Similarly, the Veteran's upper extremities were found to be normal at his July 1981 separation examination. There is also no indication of any arthritis of the right arm or wrist/hand within the first post-service year. Additionally, the Board notes that in November 1997 correspondence, submitted many years before his claim for service connection for arm and wrist disability, the Veteran specifically indicated that he was informed by a treating physician that his car had resulted in nerve damage to his hands and arms and made no mention of having sustained any hand or arm injury during service. Once again, the Veteran is competent to report right arm and hand/wrist injuries in service. However, given that the service medical records do not shown any injury to the right arm or wrist; given that the Veteran did not report any such injury when specifically relaying medical history pertaining to his hands and arms in November 1997; and given that the Veteran has not been found to be a credible historian in regard to his allegations of back, neck and shoulder injuries in service, the Board does not find credible his report of the arm and wrist injury during service. Instead, the Board credits the medical evidence of record, which tends to indicate that the Veteran did not experience right arm or wrist injury/problems in service or at any time post-service prior to 1993. Additionally, there is no medical evidence, which even suggests that any current right arm or wrist disability is otherwise related to service. Further, to the extent that the Veteran is alleging that any such disability is otherwise related to service (on a basis other than continuity of symptomatology), as a layperson, without any demonstrated expertise concerning the etiology of arm or wrist disability, such an allegation may not be afforded any probative value. See e.g. Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, the Veteran is not shown to have incurred any injury to right arm or wrist/hand during service, arthritis was not shown to be manifest during the first post-service year and these disabilities are not otherwise shown to be related to service. Accordingly, service connection for right arm and wrist disability is not warranted. 38 C.F.R. § 3.303, 3.307. 3.309; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Alemany, 9 Vet. App. 518 (1996). C. Left tibia/fibula fracture On his November 1977 report of medical history at enlistment, the Veteran reported that he did have a history of prior "broken bones." In the physician's summary, it was then clarified that the Veteran had broken his left tibia and fibula in a car accident at age 15. The subsequent service treatment records do not show any evidence of a complaint, treatment or diagnosis of any left leg condition during service. At an August 2012 VA examination, the Veteran reported that he did have the left tibia/fibula fracture prior to service. He also indicated that he injured his left ankle in 2010 and it had been bothering him at times since then. He also reported difficulty walking due to knee pain and an MRI showed mild degenerative changes bilaterally. The examiner noted that the Veteran also had left leg swelling due to chronic venous thrombosis. Additionally, the Veteran was noted to use a cane for ambulation. After examination, the examiner opined that the Veteran's pre-existing left tibia and fibula fracture was clearly and unmistakably not aggravated by service. The examiner commented that all of the Veteran's complaints stemmed from left leg swelling due to deep vein thrombosis. Also, the Veteran had mild degenerative changes in both knees due to the aging process. The examiner indicated that there had been no aggravation by service of the pre-existing left tibia/fibula fracture. The Board notes that while the evidence shows that the Veteran did have a tibia/fibula fracture at age 15, it was found to have resolved at the time of his enlistment examination in November 1977. Also, the August 2012 VA examiner did not find that the Veteran had any current left tibia/fibula disability. In this regard, he did list left tibia/fibula fracture under the heading of "diagnosis" but then proceeded to explain that the Veteran had current disability due to deep vein thrombosis and degenerative changes in the knees while not finding any current disability of the tibia or fibula. Similarly, there is no other medical evidence of current disability of the tibia and fibula. Also, while the Veteran does have bilateral knee disability (i.e. arthritis), the VA examiner specifically attributed this to the normal aging process and there is no other medical evidence of record, which attributes it to service. Additionally, it is neither shown nor alleged that the Veteran's deep vein thrombosis is related to service. The Veteran has alleged that his leg problems are secondary to his low back disability due to this disability resulting in an altered gait. However, as explained above, service connection for low back disability is not warranted in this case. Consequently, an award of service connection for leg disability as secondary to the back disability also cannot be made. Finally, to the extent that the Veteran is alleging that he does have a current tibia/fibula disability or that any current leg disability is related to service (on a basis other than continuity of symptomatology, which he has not alleged), as a layperson, without any demonstrated expertise concerning specific diagnosis of tibia/fibula disability or the etiology of leg disabilities, the Board does not afford this allegation any probative value. See e.g. Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, as a current left tibia/fibula disability is not shown and as other leg disabilities are not shown to be related to service, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. § 3.303, 3.307. 3.309; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Alemany, 9 Vet. App. 518 (1996). ORDER As new and material evidence has been received, the claims for service connection for, back disability, neck disability and shoulder disability are reopened. Service connection for a shoulder disability is denied. Service connection for a back disability is denied. Service connection for a neck disability is denied. Service connection for right arm and wrist/hand condition is denied. Service connection for a left leg disability, to include left tibia/fibula fracture, is denied. ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs