Citation Nr: 18140420 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-02 068 DATE: October 4, 2018 ORDER Entitlement to service connection for a left shoulder condition is denied. Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for depressive disorder is remanded. REFERRED The issue of total disability due to individual unemployability (TDIU) was raised in the Veteran’s medical evidence and is referred to the AOJ for adjudication. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for a left shoulder condition. 2. The preponderance of the evidence is against finding that the Veteran’s right shoulder condition is a residual condition of a right shoulder injury during active service. 3. The Veteran has a current diagnosis of lumbar spine degenerative disc disease (DDD) that, resolving reasonable doubt in his favor, is related to injury during active service. 4. The Veteran was diagnosed with the current diabetes mellitus type II in 2004 and the preponderance of the evidence is against finding that it is related to active service. 5. The Veteran has a current diagnosis of chronic headaches that, resolving reasonable doubt in his favor, is related to injury during, or continuous of symptoms manifested during and since, active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303. 2. The criteria for entitlement to service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for Entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1980 to July 1984. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left shoulder condition The Veteran contends that he has a left shoulder disability since active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of left shoulder disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran was evaluated by the Social Security administration for disability claim in June 2011. An X-ray of the left shoulder showed no abnormalities. In February 2012, the Veteran was afforded a VA examination of the shoulders. The examiner diagnosed a right shoulder condition, but not a left shoulder condition. The Veteran’s available medical treatment records do not document a currently diagnosed left shoulder condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the weight of the evidence of record does not demonstrate that the Veteran has a current left shoulder disability, the Board must deny the claim on appeal for entitlement to service connection. In reaching the above conclusion, the Board has not overlooked the Veteran’s statements supporting his claim. While the Veteran believes that he has a left shoulder disability related to service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of a shoulder disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of any current left shoulder disability is not competent medical evidence. The Board finds the opinions of the VA examiner to be significantly more probative than the Veteran’s lay assertions with respect to the presence of a current left shoulder disability. See King v. Shinseki, 700 F.3d 1339, 1344 (2012). 2. Entitlement to service connection for a right shoulder condition The Veteran contends that he developed a right shoulder disability during active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s right shoulder condition is the result of an in-service injury, event, or disease. The Veteran’s STRs document a complaint for right shoulder pain second to a football injury in October 1982. The examiner noted a possible strain. The Veteran’s VA treatment records document a fall in September 2008, described as falling while exiting the shower onto the right shoulder. The associated emergency room treatment records note the Veteran had increased pain and decreased range of motion in the right shoulder. The Veteran was unable to raise his arm. The physician recommended limited work until the shoulder healed and put the Veteran’s right arm in a sling. The Veteran’s shoulder was X-rayed and no fracture was documented. The treating physician diagnosed a right shoulder strain. In October 2008, the Veteran’s doctor allowed a return to work as the “shoulder strain” had improved. A September 2009 treatment note documents complaints about right shoulder pain and references the fall and related right shoulder injury one year earlier. The Veteran was examined by the Social Security Administration for disability claim in June 2011. Dr. B had the impression of right shoulder arthritis, but the associated X-rays were negative for abnormalities. In an August 2011 treatment note, the provider recorded that the Veteran stated he hurt his right shoulder in the Army and also while working at VA. The Veteran had been employed at the VA medical center in Asheville and said he “worked through the pain.” The Veteran was afforded a VA examination for the shoulders in February 2012. The examiner noted that the Veteran’s right shoulder was in a sling during 1982 after the documented football injury. The examiner also noted that the Veteran injured his right shoulder in 2008. The Veteran had negative X-rays in 2008 and 2011. Despite the Veteran’s inservice complaints, the examiner opined that the Veteran’s current right shoulder symptoms, reported as pain and limited range of motion, were less likely than not related to active service. Treatment records show that the Veteran continued to complain of right shoulder pain after the fall in 2008. A July 2012 MRI of the Veteran’s right shoulder showed a mild infraspinatus tendinosis with no obvious rotator tear. A September 2013 treatment note documented that the Veteran’s right shoulder was “doing reasonably well and is not in need of any further workup.” While the Veteran believes his current right shoulder symptoms are related to an injury during active service, the Board finds that the preponderance of the evidence weighs against finding that the right shoulder injury during active service is related to the Veteran’s current right shoulder symptoms. The VA examiner opined that the Veteran’s right shoulder symptoms were less than likely related to active service and the treatment records document that the Veteran had a right shoulder injury post-service in 2008. Accordingly, the Board finds that service connection for right shoulder disability is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. In reaching the above conclusion, the Board has not overlooked the Veteran’s statements supporting his claim. While the Veteran believes that he has a right shoulder disability related to service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the opinions of the VA examiner to be significantly more probative than the Veteran’s lay assertions with respect to the etiology of a current right shoulder disability. See King v. Shinseki, 700 F.3d 1339, 1344 (2012). 3. Entitlement to service connection for a lumbar spine disability The Veteran contends that he developed a lower back disability during active service as a result of injury during a basketball game. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the evidence of record is in equipoise, accordingly it finds that service connection for a lower back disability is warranted. The Veteran’s service treatment records (STRs) document complaints of lower back pain, in particular dated January 1981 due to a basketball game injury in December 1980. The medical provider assessed a muscle strain. The Veteran’s medical treatment records document ongoing complaints of and treatment for lower back pain. In a December 2007 treatment note, the Veteran reported history of at least four injuries to his lower back. The Veteran reported at a VA treatment appointment in November 2011 that he had 30 year history of lower back pain. The Veteran was afforded a VA examination in February 2012 for his lumbar spine. The examiner diagnosed degenerative disc disease of the lumbar spine and lumbar spinal stenosis dated 2011, as well as the low back strain noted in 1980. The Veteran reported that he injured his back during service while lifting a Howitzer. The Veteran also reported that he injured his back again post-service while jumping from a truck. The examiner opined that the Veteran’s lower back disability was less likely than not related to the noted injuries in service, although noting the several medical visits for low back pain in December 1980 and January 1981. The examiner noted that the Veteran did not indicate back problems on his separation examination in 1984. The examiner stated that there was a lack of evidence to support a nexus between the current back problems and the back injuries during active service. A December 2013 VA treatment note documented that the Veteran had “advanced” DDD in the lumbar spine per X-ray. The Veteran submitted a private medical opinion dated February 2017 from Dr. S who reviewed the Veteran’s medical history and treatment records. Dr. S opined that based on the continuing complaints of back pain since active service, that the Veteran’s current lower back condition is a continuation of the injury sustained during active service, as such the current lower back condition was more likely than not incurred during active service. The Board notes that there is competent evidence both favoring and against the Veteran’s claim for entitlement to service connection for a lower back disability. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for a lower back disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for lower back disability is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for diabetes mellitus The Veteran contends that he developed diabetes during active service and it continues to the present. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s current diabetes mellitus type II was incurred during active service. The Veteran’s STRs show more than one episode of syncope. In July 1980, the Veteran passed out and the notes document a possible cause of high sugar. The Veteran’s blood glucose was tested to be 142 and the doctor’s impression was mild dehydration. A note in the Veteran’s STRs recorded that the Veteran’s grandmother was diabetic. In August 1982, STRs show another reported episode of syncope. On the Veteran’s June 1984 separation examination, the examiner recorded the syncopal episodes during service. The Veteran’s September 1979 enlistment examination noted no history of diabetes. The Veteran’s current VA treatment records show that he has a diagnosis of diabetes mellitus type II and is on insulin treatment. The Veteran was afforded a VA examination in September 2013. The examiner noted that the Veteran was diagnosed with diabetes mellitus type II in 2004. The examiner opined that the Veteran’s current diabetes diagnosis was less than likely related to active service. The examiner noted that the urinalysis readings in the STRs were negative for glucose. The examiner referenced the various episodes of syncope and blood sugar readings in active service as 144, 107, and 118, and stated that the blood sugar levels indicated in the STRs do not meet the criteria for a diagnosis of diabetes mellitus as outlined by the American Diabetes Association. In summary, the Veteran’s medical records contain references to blood sugar readings and episodes of syncope, however the VA examiner opined that the episodes in service did not rise to the level of criteria for a diagnosis of diabetes. Accordingly, the Board finds that service connection for diabetes mellitus type II is not warranted based on the available medical evidence of record. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 5. Entitlement to service connection for headaches The Veteran contends that he developed a headache disability during active service as a result of injury during a basketball game. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the evidence of record is in equipoise, accordingly it finds that service connection for a headache disability is warranted. The Veteran’s STRs document multiple complaints of headaches during active service. In August 1982, the Veteran complained of regular headaches coincident with a fainting spell. The Veteran complained of ongoing headaches after a basketball injury in April 1983 when he hit his head on the ground. An August 2011 treatment note documents that the Veteran complained of frequent headaches, “ongoing for some time.” The Veteran was afforded a VA examination for headaches in June 2014. The examiner noted that the Veteran has a current headache condition for which he takes prescription medication. After a review of the Veteran’s medical treatment records, the examiner opined that the Veteran’s current headache condition was less likely than not related to the noted headache complaints in active service because there was no indication that the Veteran continued to have the headaches until they were diagnosed again in August 2011. The Veteran submitted a letter from his sister in February 2017 stating that she has observed the Veteran complaining of regular headaches. The Veteran submitted a medical opinion dated February 2017 in which Dr. S. opined that the Veteran’s headaches began in active service and continue to the present day and are aggravated by depression. Although the Veteran is not currently service-connected for depression, the doctor’s opinion is that the Veteran’s current headaches are a continuation of the same headaches manifested during active service. The Board notes that there is competent evidence both favoring and against the Veteran’s claim for entitlement to service connection for a headache disability. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for a headache disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a headache disability is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder is remanded. The Veteran’s current treatment records show appointments for sleep counseling, e.g. June 2015, noted as associated with chronic pain. The Veteran’s records also note counseling for depression episodes. It is unclear from the record if the Veteran is diagnosed with a separate sleep disorder or if the Veteran suffers from sleep problems as symptom of another condition. The Veteran should be afforded a VA examination. Finally, because a decision on the remanded issue of depression could significantly impact a decision on the issue of sleep disorder, the issues are inextricably intertwined. A remand of the claim for sleep disorder is required.   2. Entitlement to service connection for depressive disorder is remanded. The Veteran’s treatment records document a finding in August 2005 that the Veteran did not meet the DSM standard for depressive disorder. More recent treatment notes document counseling for depression, e.g. July 2015. The Veteran submitted a medical opinion dated January 2017 in which a licensed counselor opined that the Veteran has unspecified depressive disorder as a result of active service that continues to the present day. The Veteran should be afforded a VA examination that takes into account the varied evidence. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any mental health condition, claimed as depression. (a.) The examiner is asked to: (b.) Opine whether the Veteran has a mental health disorder that is at least as likely as not (i.e. probability of 50 percent or greater) related to an in-service injury, event, or disease. (c.) Opine if any diagnosed mental health disorder at least as likely as not (i.e. probability of 50 percent or greater) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) The examiner should opine whether any diagnosed mental health disorder is at least as likely as not (i.e. probability of 50 percent or greater) (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. (e.) The examiner should reference the January 2017 opinion of the licensed counselor submitted by the Veteran regarding depression diagnosis. 2. After the results of the mental health examination are available, the RO should request an opinion from an appropriate VA examiner on any insomnia condition. Physical examination by an appropriate VA examiner is left to the discretion of the VA examiner. The examiner should: (a.) Explain if the Veteran has a current separately diagnosable insomnia or other sleep disorder. (b.) Opine whether any diagnosed insomnia condition is at least as likely as not (i.e. probability of 50 percent or greater) related to an in-service injury, event, or disease. (c.) Opine if any diagnosed insomnia condition at least as likely as not (i.e. probability of 50 percent or greater) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) Opine whether any diagnosed insomnia condition is at least as likely as not (i.e. probability of 50 percent or greater) (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)