Citation Nr: 1806306	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  09-05 676	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for a bilateral shoulder disorder.  

2.  Entitlement to service connection for a low back disorder.    


ATTORNEY FOR THE BOARD

Melissa Barbee, Associate Counsel










INTRODUCTION

The Veteran served on active duty in the United States Army from February 1979 to September 1981.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Board previously remanded this claim in November 2016 for additional development.  

The issue of entitlement to service connection for a low back disorder is addressed in the REMAND portion of the decision below and is again REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran does not have a current diagnosis for a bilateral shoulder disorder.  


CONCLUSION OF LAW

The criteria for service connection for a bilateral shoulder disorder have not been met.  38 U.S.C. §§1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159.  As the Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist, the Board will proceed with appellate review.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

II.  Service Connection for a Bilateral Shoulder Disorder

Legal Criteria

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).      

Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.  Gilbert, 1 Vet. App. at 53.   

Analysis

The Veteran is seeking service connection for a bilateral shoulder disorder.  He contends that his bilateral shoulder disorder is due to his active service, particularly as a result of his military occupational specialty (MOS) as a parachute rigger.  He asserts that he sustained injuries to his shoulders due to numerous parachute jumps during service.  The Veteran has described symptoms of pain and limited motion of his shoulders.  

The Veteran's service treatment records have been associated with the claims file.  They include the Veteran's January 1979 entrance examination, which is silent for a history of musculoskeletal complaints.  The Veteran denied a painful or "trick" shoulder on enlistment.  Strength and range of motion of the upper extremities was noted as normal.   

Service treatment records (STRs) reveal that the Veteran sought treatment for shoulder pain in January 1980.  The medical record reveals that the Veteran presented for medical care with complaints of intermittent shoulder pain for three months, with no known injury.  The examiner noted that the Veteran had full range of motion in his shoulders and ruled out arthritic condition.  No diagnosis was provided.  This is the only complaint of symptoms related to a shoulder condition documented in the Veteran's STRs.  In his August 1981 separation examination, strength and range of motion of the upper extremities was noted as normal. The Veteran again denied having a painful or "trick" shoulder.  

Pursuant to the November 2016 Board remand, the Veteran was afforded a VA shoulder examination in May 2017.  The VA examiner noted the Veteran's in-service complaint of shoulder pain, as well as the lack of complaint or treatment for any shoulder condition since.  Upon objective evaluation, the VA examiner found normal range of motion of both shoulders, no evidence of pain, no localized tenderness, and normal muscle strength.  All other physical findings and testing were deemed to be normal.  Overall, the examiner determined that the Veteran does not have a current diagnosis associated with any claimed bilateral shoulder condition.  

Based on a careful review of all of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a bilateral shoulder disorder is warranted.
The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim.  38 U.S.C. §§ 1131; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).  Specifically, a claimant must have a disability in order to be considered for service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

In this case, the medical evidence of record does not reflect a current diagnosis of a bilateral shoulder disorder, and no such diagnosis has been rendered at any time during the pendency of this appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  The Board acknowledges that the Veteran sought treatment for bilateral shoulder pain on one occasion while in service.  However, the Veteran's post service medical records are silent as to complaint, treatment, or diagnosis of any shoulder condition since.  Most notably, after a thorough examination, the May 2017 VA examiner concluded that the Veteran did not have a current diagnosis of any claimed shoulder condition.  Thus, the Board finds that the most probative evidence demonstrates that the Veteran does not have a current diagnosis of a bilateral shoulder disorder.      

While the Veteran is competent to report symptoms of disability, such as pain, he does not have the specialized medical training to render a diagnosis of a bilateral shoulder disorder.  Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran has not provided any other competent or credible evidence of the existence of a current shoulder disability.    

For the foregoing reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a bilateral shoulder disorder.  Because the evidence fails to establish a current diagnosis for a shoulder condition, the Veteran's claim does not satisfy the criteria for service connection.  As such, entitlement to service connection for a bilateral shoulder disorder is not warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to service connection for a bilateral shoulder disorder is denied.  


REMAND

Unfortunately, the issue of entitlement to service connection for a low back disorder must be remanded once again for further development.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue so that the Veteran is afforded every possible consideration.  

A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Pursuant to the November 2016 Board remand, the Veteran was afforded a VA examination in May 2017 for his claimed low back disorder.  The examiner noted that the Veteran had been diagnosed with lumbar spondylosis in August 2007, based on a brief notation found in the Veteran's medical records.  After a thorough examination of the Veteran's back, which revealed normal findings, the examiner concluded that the Veteran's low back disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness.  In his rationale, the examiner noted that, as he was unable to find any x-rays to confirm the prior lumbar spondylosis diagnosis, he must conclude that the diagnosis from August 2007 was a clinical diagnosis (rather than one based on diagnostic testing or imaging).  He ultimately determined that the Veteran did not have a current lumbar diagnosis as he is not currently undergoing any treatment.  

The Board notes that there are, in fact, radiology reports contained in the claims file that show the results of an x-ray and an MRI scan of the Veteran's lumbar spine.  The reports reveal a diagnosis of degenerative disc disease, as well as "underlying spondylosis may be present." Thus, the Board finds the May 2017 medical opinion to be inadequate as it is based on an inaccurate factual premise.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Given the deficiencies discussed above, the Board is unable to find that substantial compliance with the prior remand has been achieved.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  As such, the Board must remand this matter to obtain an addendum opinion from the May 2017 examiner that accurately considers and addresses the Veteran's medical history when providing an opinion on the nature and etiology of the Veteran's low back disability.  See Stegall, 11 Vet. App. at 268. 

Accordingly, the case is REMANDED for the following actions:

1.  Return the claims file to the VA examiner who examined the Veteran in May 2017 (or another examiner if that individual is unavailable) to provide an addendum medical opinion.  The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full.  That review must be noted in the report.  Thereafter, the examiner should provide an opinion with respect to the following:

(a)  For any low back disorder(s) identified, is it at least as likely as not (50 percent or greater probability) that the disability is caused by or otherwise related to the Veteran's active duty service.   

In rendering the medical opinion, the examiner must review and consider the following evidence: a June 2006 Radiology Report (x-ray of the lumbar spine), and June 2007 Radiology Report (MRI of the lumbosacral spine).  The examiner must also consider the Veteran's service treatment records, post-service medical records, and statements.   

The examiner should set forth a complete rationale for the conclusion(s) reached.  If an opinion cannot be reached without resorting to speculation, the examiner must explain why.  
 
2.  After ensuring compliance with the above, readjudicate the claim on appeal.  If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.    

The Veteran 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.




______________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs