Citation Nr: 1805763 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-10 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disabling rating in excess of 10 percent prior to December 20, 2016 and in excess of 50 percent afterward, for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral shoulder disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran has verifiable active duty service in the United States Navy from October 1957 to October 1961, and from December 1961 to December 1967. This appeal arises before the Board of Veterans' Appeals (Board) from a January 2011 rating decision in which the Department of Veteran Affairs (VA) St. Petersburg, Florida, Regional Office (RO) granted service connection for PTSD at a disabling rating of 10 percent, and denied entitlement to service connection for left shoulder, right shoulder, cervical spine, lumbar spine, and left knee disabilities. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. The Board notes that during the October 2017 Board hearing, the Veteran properly withdrew the issue of entitlement to a disabling rating in excess of 10 percent prior to December 2016 and in excess of 50 percent afterward, for PTSD. Thus, there remain no allegations of errors of fact or law for appellate consideration in regard to this issue, and accordingly, the above issue is dismissed. See 38 C.F.R. § 20.204 (2017). The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The probative evidence of record does not establish that the Veteran's current bilateral shoulder disability was incurred in service. 2. The probative evidence of record does not establish that the Veteran's current cervical spine disability was incurred in service. 3. The probative evidence of record does not establish that the Veteran's current lumbar spine disability was incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 5102, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5102, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5102, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest 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 in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Bilateral Shoulder The Veteran contends that his bilateral shoulder injury is due to his period of service. Specifically, the Veteran has asserted that his current bilateral shoulder injury is due to an airplane accident during service. Turning to the record of evidence, a November 2010 VA examination indicates that the Veteran has current diagnoses of a right shoulder degenerative joint disease and left shoulder degenerative joint disease and complete rotator cuff tear. Therefore, the Veteran has met the first element of service connection. Turning to the second element of service connection, the Veteran's February 1966 service treatment record indicates that the Veteran was suspended from special duty for two days following an aircraft accident. The record also shows that in May 1967, the Veteran complained of discomfort in the trapezius area that occurred on and off for six months. The examiner reported an impression of trapezius muscle discomfort. Therefore, the second element of service connection has been met. Turning to the third element of service connection, in a November 2010 VA examination, the examiner reported bilateral shoulder pain history, noting the Veteran's complaint of trapezius discomfort in the Veteran's 1967 service treatment record. The examiner also noted a February 2001 orthopedic consultation in which the Veteran reported that he was lifting heavy bags of cement and had shoulder pain for a few weeks thereafter. The examiner noted that the Veteran reported being evaluated in another clinic and was told he had a torn muscle. The examiner reported that the March 2001 MRI of the Veteran's left shoulder showed full thickness rotator cuff tear and impingement. The examiner reported that the record indicates that the Veteran reported onset of shoulder pain as the September prior to the February 2001 orthopedic visit. The examiner further noted that this was the first complaint for shoulder pain of record since the Veteran's separation from service. The examiner determined that the Veteran's bilateral shoulder disability was not caused by or related to military service. The examiner explained that medical records report onset of pain in the left shoulder shortly prior to an orthopedic clinic visit in March 2001. The examiner stated that otherwise, while in military service, the Veteran denied any shoulder complaints, and shoulders were normal. The examiner reported that trapezius muscle discomfort had been resolved. In a September 2017 private medical record, the examiner stated that it is possible that the current problems and degenerative arthritis of his shoulders occurred as a result of the injury he sustained in the aircraft accident during his military service. In October 2017 correspondence, the same examiner affirmed that it was at least as likely as not that the Veteran's bilateral shoulder disability is related to an onset or events while in service. At an October 2017 Board hearing, the Veteran reported that he started going back to the doctor for his injuries within a year or so after getting out of the Navy. The Veteran reported that he was prescribed several medications for his soreness. The Veteran explained that for the next twenty years, he would mask the pain, but the progression of pain over the last five years caused him to close his car door using his walking stick. The Veteran further stated that he has had to sleep on the floor for about three or four years to help relieve his pain. The Veteran stated that he had surgery on his left shoulder in 2015. The Veteran reported that his attending physician stated that he should have had the procedure 30 or 40 years ago. The Veteran went on to clarify that he did not mention his aircraft incident in a 2008 medical examination because the pain doctor did not ask. The Veteran stated that he was given an epidural for his soreness. The Veteran stated that he never had another incident or accident of any kind. After review of the record, the Board finds that the evidence of record is insufficient to establish a nexus between the Veteran's current bilateral shoulder disability and his in-service incident. The November 2010 VA medical opinion provides probative evidence that the Veteran's in-service shoulder issue had resolved. Moreover, the opinion indicates that an interceding incident is likely to have caused the left shoulder rotator cuff tear. The September 2001 VA medical record establishes the onset of shoulder pain after an incident of carrying cement. While the September 2017 private medical opinion and the October 2017 addendum to that opinion provide a positive nexus statement, the private medical opinion lacks reasons and bases for drawing such conclusions. Thus, it is less probative in nature. Therefore, based on the probative evidence of record, the Board finds that service connection for a bilateral shoulder disability is not warranted. The Board has considered the Veteran's lay statements regarding his bilateral shoulder disability; however, the probative medical evidence weighs against a finding of a nexus between the Veteran's current disability and his in-service incident. Although the Veteran is competent to describe his symptoms, he is not competent to determine the etiology of a bilateral shoulder disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Veteran's opinion as to the etiology of his bilateral shoulder disability is not competent evidence; such question requires medical expertise to determine. Therefore, the Board finds no probative value in the Veteran's statements in regard to the etiology of his bilateral shoulder disability. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) (2017) for degenerative joint disease (arthritis) and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b) (2017); however, the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not warranted. Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the evidence weighs against a finding of service connection, this doctrine is not applicable. Cervical Spine The Veteran also contends that his cervical spine disability is due to his period of service. Specifically, the Veteran has asserted that his current cervical spine disability is due to an airplane accident during service. Turning to the record of evidence, a November 2010 VA examination indicates that the Veteran has current diagnosis of hypertrophic degenerative joint disease throughout the cervical spine with narrowing of joint spaces at C5-C6 and C6-C7. Therefore, the Veteran meets the first element of service connection. Turning to the second element of service connection, the Veteran's February 1966 service treatment record indicates that the Veteran was suspended from special duty for two days following an aircraft incident. As the service treatment record is consistent with the Veteran's description of the aircraft incident, the second element of service connection has been met. Turning to the third element of service connection, in a November 2010 VA examination, the Veteran reported that, while in military service a part of an aircraft fell on his neck and left shoulder. He recalled having an ache in his neck at that time. The Veteran also reported that, several years ago, he developed a constant ache in the neck and believed it is due to the aircraft incident. The Veteran stated that two to three times a month, he has a radiating pain going from the neck down to left shoulder blade or shoulder joint. He reported having daily ache. The examiner noted that the Veteran reported no lack of endurance, weakness, or fatigability, no limitation or inability to walk due to neck condition, and no reported flare-up. The examiner reported cervical spine pain history, noting the Veteran's report of stiffness in the neck in the Veteran's October 1960 service treatment record. The examiner also noted that this was associated with treatment for an infection. The examiner stated that the examination results showed full range of motion for neck. The examiner also noted that the issue resolved because subsequent reports of medical examination indicate normal neck and no complaints. The examiner observed that specifically, reports of medical history in September 1961, December 1961, May 1965, and November 1967 indicate no complaints or concerns regarding the neck. The examiner determined that the Veteran's cervical spine disability was not caused by or related to military service. The examiner explained that the only report of neck pain during the Veteran's service was the October 1960 report of stiffness associated with a cold infection. The examiner stated that the examination at that time demonstrated full range of motion of the neck, and subsequent examinations indicated normal cervical spine examination and no complaints. The examiner also stated that the Veteran was diagnosed with cervical spine degenerative joint disease many years after being discharged from military service. For these reasons, he concluded that the Veteran's cervical spine disability is not related to service. In a September 2017 private medical record, the examiner stated that it is possible that the current problems and degenerative arthritis of his neck occurred as a result of the injury he sustained in the aircraft accident during his military service. In October 2017 correspondence, the same examiner affirmed that it was at least as likely as not that the Veteran's cervical spine disability is related to an onset or events while in service. At an October 2017 Board hearing, the Veteran reported that he started going back to the doctor for his injuries within a year or so after getting out of the Navy. The Veteran reported that he was prescribed several medications for his soreness. The Veteran explained that for the next twenty years, he would mask the pain, but the progression of pain over the last five years caused him to close his car door using his walking stick. The Veteran further stated that he has had to sleep on the floor for about three or four years to help relieve his pain. After review of the record, the Board finds that the evidence of record is insufficient to establish a nexus between the Veteran's current cervical spine disability and his in-service incident. The November 2010 VA medical opinion provides probative evidence that the Veteran's in-service cervical spine issue was related to a cold and had resolved. The examiner further noted that the evidence of record indicates that many years lapsed after separation before the Veteran's first complaint of cervical spine pain. The Board finds that the opinion is bolstered by adequate reasons and bases, and thus, is probative in nature. While the September 2017 private medical opinion and the October 2017 addendum to that opinion provide a positive nexus statement, the private medical opinion lacks reasons and bases for drawing such conclusions. Thus, it is less probative in nature. Therefore, based on the probative evidence of record, the Board finds that service connection for a cervical spine disability is not warranted. The Board has considered the Veteran's lay statements regarding his cervical spine disability; however, the probative medical evidence weighs against a finding of a nexus between the Veteran's current cervical spine disability and his in-service incident. Although the Veteran is competent to describe his symptoms, he is not competent to determine the etiology of a cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Veteran's opinion as to the etiology of his cervical spine disability is not competent evidence; such question requires medical expertise to determine. Therefore, the Board finds no probative value in the Veteran's statements in regard to the etiology of his cervical spine disability. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) (2017) for degenerative joint disease (arthritis) and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b) (2017); however, the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not warranted. Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the evidence weighs against a finding of service connection, this doctrine is not applicable. Lumbar Spine The Veteran further contends that his lumbar spine disability is due to his period of service. Specifically, the Veteran has asserted that his current lumbar spine disability is due to an airplane accident during service. Turning to the record of evidence, a November 2010 VA examination indicates that the Veteran has current diagnosis of anterior hypertrophic spondylosis throughout the entire lumbar spine with narrowing of the disk space between L4 and L5 and mild posterior osteophytic spurring. Therefore, the Veteran meets the first element of service connection. Turning to the second element of service connection, the Veteran's February 1966 service treatment record indicates that the Veteran was suspended from special duty for two days following an aircraft incident. Moreover, the Veteran reported a sore back for two days in a May 1965 service treatment record. The record notes an impression of muscle strain of the back. Therefore, the second element of service connection has been met. Turning to the third element of service connection, in a November 2010 VA examination, the Veteran reported that, while in the military, he had occasional low back pain. The Veteran also reported that in the 1980's, the pain became worse, and in the 1990's, he had daily low back pain associated with radiation. Therefore, in 1996, he underwent surgery on the lower back. The Veteran stated that he was not sure what kind of surgery it was, but he did report that the surgery was experimental surgery where part of his disk was removed. The Veteran reported that he did well for a while after surgery until early 2000 when radiculopathy returned. The Veteran stated that he has a constant pain in lower back associated with occasional radiculopathy such as pain shooting down on the posterior left thigh to the level of his foot. He also stated that he occasionally feels pins and needles in the left foot. He reported pain, stiffness, lack of endurance and partial weakness of the left thigh. The examiner reported lumbar spine pain history, noting that in 2006, he had MRI of lumbar spine. The examiner reported that the MRI showed L1-L4 posterior disk protrusion as in deformity of left S1 nerve root, L4-L5 severe degenerative joint disease and L1-L4 mild disk degeneration. The examiner also noted that the records indicated that in 2006, the Veteran had steroid injections. The examiner determined that the Veteran's lumbar spine disability was not caused by or related to military service. The examiner explained that there was a singular complaint in May 1965 of a sore back of two days duration with diagnosis of muscular strain. The examiner further explained that it has been resolved with a normal spine and no complaints at the time of the separation examination. The examiner further noted that the Veteran was diagnosed with degenerative joint disease of the lumbar spine many years after being discharged from military service. Therefore, the examiner concluded that that the Veteran's current diagnosis is not related to his period of service. In a September 2017 private medical record, the examiner stated that it is possible that the current problems and degenerative arthritis of his back occurred as a result of the injury he sustained in the aircraft accident during his military service. In October 2017 correspondence, the same examiner affirmed that it was at least as likely as not that the Veteran's lumbar spine disability is related to an onset or events while in service. At an October 2017 Board hearing, the Veteran reported that he started going back to the doctor for his injuries within a year or so after getting out of the Navy. The Veteran reported that he was prescribed several medications for his soreness. The Veteran explained that for the next twenty years, he would mask the pain, but the progression of pain over the last five years causes him to close his car door using his walking stick. The Veteran further stated that he has had to sleep on the floor for about three or four years to help relieve his pain. The Veteran reported that his attending physician stated that he should have had the procedure 30 or 40 years ago. The Veteran stated that he was given an epidural for his soreness. The Veteran stated that he never had another incident or accident of any kind. After review of the record, the Board finds that the evidence of record is insufficient to establish a nexus between the Veteran's current lumbar spine disability and his in-service incident. The November 2010 VA medical opinion provides probative evidence that the Veteran's in service back issue had resolved. The examiner further noted that the evidence of record indicates that many years lapsed after separation before the Veteran's first complaint of lumbar spine pain. The Board finds that the opinion is bolstered by adequate reasons and bases, and thus, is probative in nature. While the September 2017 private medical opinion and the October 2017 addendum to that opinion provide a positive nexus statement, the private medical opinion lacks reasons and bases for drawing such conclusions. Thus, it is less probative in nature. Therefore, based on the probative evidence of record, the Board finds that service connection for a lumbar spine disability is not warranted. The Board has considered the Veteran's lay statements regarding his lumbar spine disability; however, the probative medical evidence weighs against a finding of a nexus between the Veteran's current disability and his in-service incident. Although the Veteran is competent to describe his symptoms, he is not competent to determine the etiology of a lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Veteran's opinion as to the etiology of his lumbar spine disability is not competent evidence; such question requires medical expertise to determine. Therefore, the Board finds no probative value in the Veteran's statements in regard to the etiology of his lumbar spine disability. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) (2017) for degenerative joint disease (arthritis) and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b) (2017); however, the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not warranted. Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the evidence weighs against a finding of service connection, this doctrine is not applicable. ORDER The appeal is dismissed as to the issue of entitlement to a disabling rating in excess of 10 percent prior to December 2016 and in excess of 50 percent afterward, for PTSD. Entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. REMAND While the Board sincerely regrets this delay, the record reflects that further development is required with respect to the nature and etiology of the Veteran's left knee disability. The Veteran contends that his left knee disability is due to his period of service. Specifically, the Veteran has asserted that his current left knee disability is due to an airplane accident during service. Under 38 C.F.R. § 3.159(c)(4), a VA opinion is necessary if the evidence of record: (1) contains competent evidence that the Veteran had a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the Veteran suffered an event, injury or disease in service; (3) indicates that the claimed disability or symptoms may have been associated with the established event, injury, or disease in service or with another service-connected disability, but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In November 2010, the Veteran was afforded a VA examination. The examiner determined that the Veteran's left knee disability was not related to the Veteran's service; however, while the examiner gave a medical history and physical examination of the Veteran, the examiner did not provide reasons and bases for his medical opinion regarding the Veteran's knee disability. Likewise, a September 2017 private medical opinion and the October 2017 addendum to that opinion provide a positive nexus statement, but the private medical opinion lacks reasons and bases for drawing such conclusions. Therefore, neither opinion of record is adequate for the purpose of adjudicating the claim. Thus, a remand is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran's claims file to an appropriate examiner for an addendum opinion. The examiner should determine the nature and etiology of the Veteran's left knee disability. The claims file should be made available and reviewed by the examiner. The examiner shall consider all other medical records associated with this file during review, including discussion of the Veteran hearing testimony and lay statements regarding the onset of symptoms. The examiner is asked to offer the following opinion: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability was manifested in, caused by, or is otherwise etiologically related to his period of service. In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of symptoms. The examiner should explain the medical basis for the conclusions reached. 2. After any additional development deemed warranted, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs