Citation Nr: 1801623 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-18 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right shoulder disability 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to a compensable rating for a perforated right ear drum with modified mastoidectomy and tympanoplasty. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of September 2012 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The issues of service connection for a right shoulder disability and service connection for a left shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In July 2017, the Veteran stated on the record at his hearing that he wished to withdraw from his appeal the issue of entitlement to a compensable rating for a perforated right ear drum with modified mastoidectomy and tympanoplasty. 2. The Veteran's low back disability was not incurred in military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the issue of entitlement to a compensable rating for a perforated right ear drum with modified mastoidectomy and tympanoplasty have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim The Veteran's appeal included the issue of whether he was entitled to a compensable rating for a perforated right ear drum with modified mastoidectomy and tympanoplasty. At his hearing before the Board in July 2017, the Veteran stated on the record that he wished to withdraw this issue from his appeal. A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. Withdrawal of a substantive appeal may be made by the Veteran. 38 C.F.R. § 20.204. As there is no longer an allegation of error of fact or of law as to this claim, the Board does not have appellate jurisdiction and the appeal as to entitlement to a compensable rating for a perforated right ear drum with modified mastoidectomy and tympanoplasty is dismissed. 38 U.S.C.A. § 7105. Service Connection for a Low Back Disability The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran asserts that he has a current low back disability as a result of his military service. Specifically, he contends that he hurt his back while carrying artillery shells weighing at least 200 pounds. As an artilleryman, he would help unload the shells from trucks and carry them to his howitzer while they were in the field. He testified that he has had back pain starting in service, which continues to this day. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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). The Veteran has been diagnosed with lumbar spine osteoarthritis. Thus, the remaining question is whether the lumbar spine disability is related to the Veteran's military service. Service treatment records reflect that in April 1973 the Veteran complained his back hurts when he lays down and when standing up after sitting down for a long while. The Veteran stated it had a gradual onset. Physical examination was consistent with a herniated disc. A May 2013 consultation request indicates low back pain probably secondary to strain but noting that a herniated disc could not be ruled out for sure. The Veteran was started on back flexion, extension, and posture training and prescribed a home program. The spine was normal in the August 1974 separation examination. Arthritis is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2017). In December 1990, the Veteran sought treatment for low back pain with history of an injury to the back two years earlier after a wall fell upon the Veteran. X-rays at that time showed mild to moderate degenerative osteoarthritis at L5-S1, L2-L3, and L3-L4. In November 1993, the Veteran stated his back was killing him but he never sought treatment at a United States Army Clinic. In July 2012, the Veteran complained of spine pain. X-rays demonstrated advanced degenerative changes of the lumbar spine. In October 2013, the Veteran reported working twelve hour shifts repeatedly lifting 50 pound boxes for several years. The medical provider specifically noted this obviously caused more wear and tear upon the Veteran's bones and joints. The Veteran was afforded a VA examination in May 2014 with an addendum provided in September 2014. The Veteran stated the pain had been off and on but lately, the pain, now daily, worsened. The VA examiner, in the September 2014 addendum, concluded it was less likely than not that the Veteran's disability began in service. The Veteran had been diagnosed with lumbar spine strain while in service and more recently advanced degenerative changes. The VA examiner concluded there is no nexus between the Veteran's in-service low back strain and current disability of the lumbar spine as there is no pathophysiologic relationship. The Veteran was evaluated and treated for low back pain in service. There is no service or immediate post-service medical record evidence to indicate treatment for a chronic or ongoing low back pain condition/strain. The medical record evidence therefore indicates that the 1973 back pain resolved without any residuals. The next treatment of the back occurred in 1990 when the Veteran presented with a two week history of low back pain - radiological evidence demonstrated mild to moderate degenerative osteoarthritis of the lumbar spine. This indicates that the Veteran did not have chronic/ongoing back symptoms before this point in time and the Veteran's current pain is probably the result of the degenerative osteoarthritis. Strain in the low back and degenerative osteoarthritis are not the same and low back strain does not cause degenerative arthritis. Strain involves overuse of a muscle and is usually acute resolving without any residuals while degenerative osteoarthritis involves bone and cartilage resulting from the natural ageing process. No in-service diagnosis of degenerative osteoarthritis was found. In December 2014, a rheumatology consultant noted the Veteran had low back pain off and on for the previous 10 years. The Veteran definitely had ostearthritis, but the consultant's suspicion he also had rheumatoid arthritis was low. In March 2017, another VA examiner reviewed the evidence and also concluded the Veteran's current low back disability was less likely than not incurred in or caused by service. He noted the Veteran was required to carry heavy rounds and hurt his back as a result. The Veteran had some mild pain for the rest of his service and has the same now. The VA examiner noted, however, that after May 1973, the service treatment records are silent regarding a back or lumbar spine condition. Due to the absence of supporting evidence of chronic or persistent back condition during service, the VA examiner cannot link the Veteran's current lumbar spine condition to service. The 2014 and 2017 VA examiners were asked to address any relationship between service and the current back disability. They have concluded there is no relationship between the Veteran's acute back injury in 1973 and his current low back disability. There is no medical evidence in significant conflict with the opinions of the VA examiners. Thus, the most probative medical evidence is against the claim. As noted, the Veteran attributes his current condition to service. He has provided testimony of his back hurting since he lifted large ammo shells in service. He has also provided statements from his wife and various friends and family members all recalling that the Veteran had back pain for many years and the Veteran told them he hurt his back in service picking up ammo shells. What he views as related ongoing back pain after service, the medical experts, as noted, have concluded are independent of service and service is not the cause of his low back disability. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Veteran has reported experiencing back pain since service. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the existence of a low back disability or as to the etiology of a low back disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current low back disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In any event, the Board finds the medical opinions more probative than the Veteran's lay evidence as the opinions were offered by medical professionals after examination of the Veteran and consideration of the history of the disability including the Veteran's reports of back pain, and the opinions are supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has a current low back disability that was caused or aggravated by service. Thus, the claim for service connection is denied. ORDER The appeal for a compensable rating for a perforated right ear drum with modified mastoidectomy and tympanoplasty is dismissed. Entitlement to service connection for a low back disability is denied. REMAND In June 2013, the Veteran had right shoulder pain with range of motion. The following month, the Veteran provided VA with private X-rays of the right shoulder demonstrating mild to moderate AC joint osteoarthritis. The X-rays also showed the Veteran had a remote trauma to his right clavicle. The Veteran attributes his shoulder disabilities to service, specifically pointing to the X-ray evidence of an old trauma to his clavicle as evidence of injury in service. As noted, he believes carrying 200 pound ammunition shells across his back and shoulders caused his current disabilities. There has not been a VA examination to determine whether the Veteran's shoulder disabilities are related to incidents during service. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether the disabilities are present and to ascertain their etiology. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Ongoing VA medical records should also be obtained. See 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant VA treatment records not currently associated with the file dating from August 2017 to the present. 2. After the record development is completed, provide the Veteran with a VA shoulder examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is asked to determine whether the Veteran has a shoulder disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is related to service, to include carrying heavy artillery shells. 3. After the development requested is completed, readjudicate the claims for service connection. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs