Citation Nr: 1805475 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-20 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a left shoulder sprain. 3. Entitlement to an initial compensable rating for a scar of the right index finger due to laceration with surgical repair to right index finger (right index finger scar). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1997 to September 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the record. The issue of a compensable rating for a scar of the right index finger 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 does not have a currently diagnosed back disability. 2. The Veteran's left shoulder disability, left shoulder sprain, was not caused or aggravated by military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for establishing service connection for a left shoulder disability, left shoulder sprain, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has 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). 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). Service Connection for a Back Disability The Veteran asserts that he has a current back disability as a result of his military service. Specifically, he contends that he hurt his back over time in service operating bulldozers, back hoes, and other heavy equipment. The service treatment records do not indicate the Veteran ever sought treatment or received a diagnosis for a back disability. Instead, in his April 2002 separation examination, the Veteran reported chronic low back pain conservatively treated without medical evaluation. The Board notes that in prior service occupational examinations in (June 2000 and March 2001), the Veteran said he did not have any back or muscle or joint problems. Both VA and private medical records document the Veteran has complained of low back pain but also do not document a diagnosis such as arthritis for the pain. Instead, the medical providers have only noted chronic low back pain. In a September 2017 VA examination for the back, the examiner concluded the Veteran does not have a back disorder and also noted X-rays of the low back were within normal limits. The Board finds that a current back disability has not been demonstrated. There is no medical evidence in the file, either service or civilian, that the Veteran has been diagnosed with any type of a back disability. One of the requirements for service connection is that the claimed disability currently exists. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A [V]eteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the [V]eteran's service and the disability . . ."). While the Veteran as a layperson is competent to report observable symptomatology such as pain, he is not competent to diagnose a disability of the back as that is a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board has acknowledges that the Veteran has reported experiencing back pain since service. Pain alone, however, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 259 F.3d 1356, 1361-62 (Fed. Cir. 2001). In any event, the Board finds the medical opinion more probative than the Veteran's lay statements, as the opinion was offered by a medical professional after consideration of the history of the disability including the Veteran's reports of back pain, and as the opinion is supported by a clear explanation. In summary, the Veteran does not have a current diagnosis of a back disability. Because the medical evidence does not establish that the Veteran has a current back disability, in this case, the Board finds that the Veteran is not entitled to service connection for a back disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service Connection for a Left Shoulder Disability The Veteran asserts that he has a current left shoulder disability as a result of his military service. Specifically, he contends that he hurt his left shoulder when it was struck by the side mirror of a Humvee. Service treatment records confirm the Veteran was hit by a Humvee mirror in July 2002. The Veteran was diagnosed with left shoulder and upper arm sprains and strains. He was prescribed Motrin and instructed to apply moist heat to the affected area. He was then allowed to return to duty but instructed to return if the signs or symptoms worsened. No left shoulder complaints, symptoms, or diagnoses were thereafter noted in the service treatment records. Clinical evaluation of the upper extremities was normal at the Veteran's April 2002 separation examination. In connection with that examination, the Veteran specifically denied having had shoulder pain. 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). Left shoulder sprain was diagnosed at a VA examination in September 2017. No other left shoulder disabilities were diagnosed during the course of the appeal or shortly before the Veteran filed the claim on appeal. Thus, the remaining question is whether the left shoulder sprain is related to the Veteran's military service The September 2017 VA examiner was asked to address any relationship between the in-service left shoulder complaint and the current shoulder disability. The examiner opined that it was less likely than not that the current left shoulder sprain was related to the shoulder complaint during service. The examiner acknowledged the left shoulder injury from the Humvee but noted it was treated conservatively at time of initial injury in service. He was instructed to follow up if conditions did not improve, however no follow up occurred. The lack of follow-up care resulted in the VA examiner concluding that his condition improved. Moreover, his current left shoulder X-rays are normal. There is no medical evidence in significant conflict with the opinions of the VA examiner. 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 shoulder pain since service. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the existence of a left shoulder disability or as to the etiology of a left shoulder 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 left shoulder 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."). Given the Veteran's denial of shoulder pain at separation, the Board also assigns any current statement that shoulder pain began during and continued since service to be of little probative value as it is in direct conflict with statements made contemporaneous to service for the purpose of identifying disability. In any event, the Board finds the VA examiner's medical opinion more probative than the Veteran's lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disability including the Veteran's reports of shoulder pain, and as the opinion is supported by a clear rationale. Notably, the opinion is supported by other evidence of record as well, such as the normal clinical evaluation of the upper extremities at separation and the Veteran's denial of shoulder pain at separation. In summary, the preponderance of the evidence is against a finding that the Veteran has a current left shoulder disability that was incurred as a result of service. Thus, the claim for service connection is denied. ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left shoulder disability is denied. REMAND The Veteran has been service connected for a scar on the right index finger since the January 2008 rating decision. He expressed disagreement to the noncompensable rating assigned for the scar disability under 38 C.F.R. § 4.118, Diagnostic Code 7805. He asserted the finger does not bend like it should affecting his grip and it has limited motion. After further development, including a September 2017 VA examination which covered both the scar and the functional or orthopedic limitations of the right index finger, the AOJ issued a rating decision in September 2017 that granted service connection for the orthopedic limitations separate and apart from the scar disability. The AOJ then stated that this action satisfied the Veteran's appeal of the noncompensable rating for the scar. The Board finds this is incorrect. The Veteran may still be entitled to a compensable rating for the scar as the criteria are different for that disability as opposed to the orthopedic limitations of the right index finger. Compare 38 C.F.R. § 4.118 with 38 C.F.R. § 4.71a. The Board therefore finds the claim for a compensable rating for the right index finger is still pending. At this point, the next step was for the RO to issue Supplemental Statement of the Case (SSOC), and the Veteran could then prepare a response or submit more evidence if he choose to do so. Here, as the AOJ did not prepare a SSOC considering the September 2017 VA examination and other evidence received since the original statement of the case, a remand is required to afford the Veteran procedural due process so that a SSOC addressing the additional evidence may be issued and the Veteran be afforded an opportunity to respond. That way, he is not deprived of the opportunity to prevail at the AOJ level. The rating assigned for the right index finger scar is on appeal. If the Veteran is not satisfied with the separate rating assigned by the September 2017 rating decision for impairment of the right index finger, he should file a notice of disagreement as to that decision on the form prescribed by the Secretary. The Board notes that the Veteran has one year from that decision to file an appeal and additional action is required if he wishes to pursue a higher rating for that disability. 38 C.F.R. §§ 20.201, 20.302 (2017). Accordingly, the case is REMANDED for the following action: The AOJ should review the record, to include all evidence in the claims file which was not considered in the Statement of the Case, and re-adjudicate the issue of the appropriate rating for the right index finger scar on appeal. Specific consideration must be given to the September 2017 VA examination report. If the benefit sought is not granted in full, the Veteran and his representative must be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim 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