Citation Nr: 1806277 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-07 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service in the United States Army from January1952 to September 1953. He was awarded a Purple Heart and Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2012, February 2013, and April 2014 rating decisions by the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in May 2017 for additional development. The Veteran did not perfect an appeal for the issues of entitlement to service connection for right shoulder disability and sore throat, and entitlement to higher disability ratings for shell fragment wound left anterior leg tibialis anterior muscle and gastroesophageal reflux disease (GERD). 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The Veteran specified which issues he was appealing and he did not list these issues in the February 2016 VA Form 9. Therefore, the appeal of these issues was not perfected and is not before the Board. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was granted from May 23, 2014. See the September 2014 rating decision. 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) (2014). FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the lumbar spine and intervertebral disc syndrome (IDS) were not present in service or manifest to a compensable degree within one year of service discharge and are not otherwise etiologically related to service. 2. The Veteran's rotator cuff tear with degenerative joint disease of the left shoulder was not present in service or manifest to a compensable degree within one year of service discharge and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder, to include degenerative arthritis of the lumbar spine and IDS are not met. 38 U.S.C. §§ 1110, 1154(b), 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a left shoulder disorder, to include rotator cuff tear with severe degenerative joint disease of the left shoulder are not met. 38 U.S.C. §§ 1110, 1154(b), 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in letters dated July 22, 2011, February 17, 2012, and November 27, 2012. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. The Veteran has challenged the adequacy of the examination on the grounds that the examiner did not check his range of motion or physically examine his back or shoulder. Inasmuch as the instant appeal involves service connection for the disorders, and not the proper disability evaluation, and as the other clinical records reviewed by the examiner describe the underlying maladies associated with the lumbar spine and left shoulder disorders, the Board finds that the Veteran's allegations do not raise a relevant issue regarding the adequacy of the examination. As the nature of the disabilities was established by other records, and as the purpose of the examination, namely to determine the etiology of those disorders, does not require clinical findings and was in fact accomplished by the examiner, the Board finds that the examination is adequate. Law and Analysis The Veteran is seeking service connection for lumbar spine and left shoulder disorders. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, such as arthritis (degenerative joint/disc disease) may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran is seeking service connection for lumbar spine and left shoulder disorders. In various statement submitted in support of his claim, the Veteran asserts that he developed lumbar spine and left shoulder problems as a result of combat injuries, including carrying heavy equipment and falling while running for cover with full gear on. A review of the claims folder indicates that with the exception of his separation physical, the Veteran's service treatment records are not available for review. See VA Form 3101 dated February 28, 2012. Accordingly, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). So while it is unfortunate that the Veteran's complete service treatment records are unavailable, this appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened obligation set forth in Cuevas and O'Hare in mind. That said, his 1953 separation physical shows that clinical evaluation did not indicate the presence of back or shoulder problems or impairment of any sort. However, where it is established that a veteran served in combat and that veteran asserts service connection for injuries or disease incurred or aggravated in combat, not only is the combat injury presumed, but, absent evidence to the contrary, so is any disability incurred during the combat. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). See Reeves v. Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012) (discussing the combat presumption under 38 U.S.C § 1154(b)). There still must be competent and credible evidence linking such disability to any current disability. Therefore the Veteran is not only competent to report in-service injuries to his back and left shoulder, he is also credible. Although the Veteran now claims to have experienced ongoing problems with his back and shoulder since service, there is no indication that he has had a need for continued or ongoing medical care due to any acute symptoms in the immediate years after his separation from service in 1953. The earliest relevant medical evidence is found in VA progress notes dated in 2011, when he began regular treatment for back and shoulder pain. Radiological findings showed osteopenia and mild dextrorotation of the spine and degenerative disease of the spine with multilevel discogenic disease. X-ray findings of the left shoulder were consistent with degenerative joint disease. See VA Progress Notes from the San Juan VA Medical Clinic. These treatment records do not suggest that any back or left shoulder symptomatology originated during military service and there is no indication that the Veteran related his symptoms to service or to any event of service at that time. In August 2017, the Veteran was afforded a VA examination in connection with his claims. The examiner reviewed the claims file, including service and post-service treatment records, and summarized the findings. After reviewing the Veteran's history and conducting an examination, the examiner concluded the degenerative arthritis and disc disease of the lumbar spine and left shoulder rotator cuff tear and arthritis, were less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner noted that there was no evidence to suggest a direct nexus of causality between military service injuries to the present actual lumbar spine and left shoulder conditions. He explained that the diagnosed lumbar disc disease with spondylosis and spinal canal stenosis and diagnosed left shoulder rotator cuff tear with severe degenerative joint disease are both chronic conditions that tend to progressively worsen over time with the natural aging process and/or due to repetitive trauma. According to current medical literature, degenerative joint/disc disease would not have developed radiographic findings during the Veteran's short period of service as these are long standing processes. In addition, there is no evidence of continuity of treatment after service and the current lumbar spine and left shoulder conditions were diagnosed many years after service. The examiner also indicated that medical literature supports the fact that the diagnosed lumbar spine and left shoulder conditions are considered part of the normal aging process in individuals 35 years old or older and that obesity and occupational history could also predispose to degenerative joint and disc disease. The examiner ultimately concluded that the Veteran's diagnosed lumbar spine and left shoulder disorders were more likely than not related to the natural process of aging. Based on the foregoing, the Board finds that the Veteran's diagnosed lumbar spine and left shoulder disorders are not related to his military service. Despite his credible reports of combat injuries during service, the objective evidence of record suggests that any related back or shoulder symptoms were neither chronic nor continuous, but instead completely resolved by the time of service discharge. In other words, the acute nature of the symptoms is evidenced by his separation physical which showed his back and upper extremities were clinically normal. Thus it appears that continuing permanent back and left shoulder disorders were not then present. Nevertheless, the Veteran has asserted that he experienced back and left shoulder symptoms during his active military service, which have continued since his separation from service. However the evidence does not otherwise show any treatment (or relevant complaints) related to any low back or left shoulder conditions for almost 60 years. The prolonged period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Moreover, the earliest records of treatment for the disorders do not reference any service origin or otherwise suggest an account of symptoms that suggest an origin in service or within a year of service discharge. So after weighing his assertions of continuity against the absence of evidence of chronic disorders during service and the prolonged period before the first documented post-service treatment and diagnosis, the Board finds that there is insufficient evidence of continuity of symptomatology to enable an award of service connection solely on this basis under the provisions pertaining to "chronic diseases." See Walker, supra. Also as diagnoses of degenerative arthritis and disc disease, confirmed by X-ray, were not demonstrated until well after one year following his separation from his period active duty, the Veteran does not satisfy the criteria for service connection for back and left shoulder disorders on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Furthermore, the only competent medical opinion of record demonstrates that the current low back and left shoulder disorders are not related to the in-service incident. In this case, the Board finds the VA opinion is highly probative as it is based upon a complete review of the claims file, sets out the most helpful and complete discussion of the medical questions, and is supported by adequate rationale. The examiner concluded that any inservice injuries were not the cause of his currently diagnosed lumbar spine and left shoulder disorders when also considering other possible explanations such as age and the lack of continuity of care. In doing so the examiner did not base his opinion merely on the absence of contemporaneous documentation of these conditions, rather, just considered this as one of several relevant considerations. The claims file contains no competent medical evidence refuting it. Finally, to the extent the Veteran's statements purport to provide a nexus opinion between his claimed disorders and service, the Board notes determining the etiology of arthritis, disc disease, and rotator cuff tears (as distinguished from merely reporting the presence of symptoms) is not a simple question. Doing so requires knowledge of the complexities of the musculoskeletal system and the potential causes of such disorders, and so is beyond the scope of knowledge of a lay person. It also requires discussion of the inherently medical question of how impact trauma and/or particular activities may have contributed to bring about degenerative musculoskeletal conditions many years later particularly in light of the absence of clinical evidence in the interim. In this case, the facts are complex enough that the Veteran's current assertions regarding his symptoms are not sufficient to outweigh the remaining evidence of record. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). In any event, even assuming the Veteran is competent to address the etiology of his degenerative musculoskeletal conditions years after service, the probative value of his opinion is outweighed by that of the VA examiner, who clearly does have the expertise, training and education to address such etiology. Accordingly, the preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b). ORDER Entitlement to service connection for a lumbar spine disorder, to include lumbar degenerative arthritis and IDS is denied. Entitlement to service connection for a left shoulder disorder, to include rotator cuff tear of the left shoulder with degenerative joint disease. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs