Citation Nr: 1801701 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-29 602 ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Although the Veteran's June 2016 VA Form 9 (submitted in conjunction with the current appeal) did not indicate whether the Veteran desired a hearing before the Board, neither the Veteran nor his representative have indicated that he desires a hearing before the Board at any subsequent time in statements submitted to the Board. Therefore, there is no outstanding hearing request, and the Board may adjudicate the Veteran's claim on appeal. 38 C.F.R. §§ 20.700 (a), 20.703 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. The Veteran's low back did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by his active service. 2. The Veteran's right shoulder disability did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1111, 1153, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1111, 1153, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2016); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice to a claimant should be provided at the time or immediately after VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103 (a) (West 2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant and Veteran were provided with 38 U.S.C. § 5103 (a)-compliant notice in August 2012. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. No examinations have been provided with regard to the claims for entitlement to service connection for a low back disability and right knee disability. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As is discussed in greater detail below, there is no indication of a low back disability and right shoulder disability in service, and no evidence of signs or symptoms of a low back disability and right shoulder disability to trigger to the duty to examine. Therefore, the Board finds that VA examinations are not warranted. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). The Veteran asserts that his low back and right shoulder disability were incurred in service. Specifically, the Veteran has reported that he injured his low back and right knee in Germany while during construction of a bridge. A review of the Veteran's service treatment records shows no reports or treatments for the low back or right shoulder. A June 1955 service treatment record shows that the Veteran fell and suffered a contusion and abrasion of the knee. A May 1956 separation examination shows that the Veteran was assessed with a clinically normal spine and lower extremities. Post service, an August 1957 VA treatment record shows that the Veteran was treated for a fracture of the left lower leg. The Veteran did not report any low back or knee disabilities during treatment. An April 1987 private treatment record show that the Veteran's private physician provided a reporting that the Veteran injured in an industrial accident in December 1985 and sustained a neck injury with cervical disc disease and a spinal cord injury. The Veteran was noted to have had persistent defects in lifting bending and persistent weakness in the arms and legs with trouble with walking and poor balance. An April 1987 private treatment record shows the Veteran sustained a fall on December 28, 1985, with injury of cervical spine, back, and right shoulder. A May 1997 VA treatment record shows that the Veteran reported low back pain. An August 1997 VA treatment record showed that the Veteran was diagnosed with degenerative disc disease of the lumbar spine. A December 2003 VA treatment record shows that the Veteran was diagnosed with chronic shoulder impingement. A March 2006 VA treatment record shows that the Veteran was diagnosed with degenerative joint disease of the bilateral shoulders. An April 2011 VA treatment record shows that the Veteran reported bilateral shoulder pain. Initially, the Board finds that it cannot be concluded that a low back or right shoulder disability were shown in service. In fact, there is no objective medical evidence of any complaints, symptoms, findings, or diagnoses of any low back or right shoulder disability in service. In addition, the May 1956 separation examination found no clinical abnormalities of the spine or right shoulder, nor did the Veteran complain of any low back or right shoulder symptoms at that time. In addition, arthritis was not shown in service, nor is it shown to have manifested within the one year following separation from service, so as to support granting service connection on the basis of presumptive service connection. 38 C.F.R. §§ 3.307, 3.309(a) (2017). Moreover, there is no competent medical evidence or opinion that any diagnosed low back or right shoulder disability, are related to the Veteran's service, and neither the Veteran nor representative has presented, identified, or alluded to the existence of any such opinion. The only other evidence of record supporting the Veteran's claim are his own lay statements. Even if those statements claim continuity of symptomatology since service, that history is substantially rebutted by the absence of complaints pertaining to any low back or right shoulder in service or until 1987 private treatment records noting that the Veteran had recently experienced an industrial accident causing injuries to his back and right shoulder, and there was absolutely no suggestion that the symptoms were related to or had been ongoing since service. Therefore, the Board finds that the Veteran's more recent statements regarding the low back and right shoulder disability were incurred in service are less credible and do not show that it is at least as likely as not that there was a continuity of symptomatology since service. Moreover, had the Veteran actually been experiencing low back and right shoulder disabilities due to service, he would have most likely reported such occurrences when he was treated in 1957 for a broken fibula and in 1987 when he was treatment for back and right shoulder injuries that occurred during his employment. In addition, while the Veteran, is competent to describe his symptoms, the Board finds that there is no evidence of record to show that he has the specialized medical education, training, or experience necessary to render a competent medical opinion as to the nature and etiology of the claimed low back and shoulder disabilities. Diagnosing and providing an etiology of a low back and right shoulder disability, to include arthritis, is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, any opinion by the Veteran, is not competent because he does not have the training to opine on that medical issue. The Board finds that no examination is needed because the evidence does not indicate that the Veteran has a low back or right shoulder disability that are related to service. 38 C.F.R. § 3.159 (c)(4) (2017). Accordingly, the Board concludes that the evidence of record does not support the claim of entitlement to service connection for a low back and right shoulder disability on a direct or presumptive basis. The preponderance of the evidence is against a finding that a low back and right shoulder disability were incurred in service. Moreover, because there is no evidence that the Veteran developed arthritis to a compensable degree within one year of separation from service, service connection on a presumptive basis is also not warranted. The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs