Citation Nr: 18142264 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-12 993 DATE: October 15, 2018 ORDER Service connection for right shoulder degenerative arthritis is granted. REMANDED Service connection for a lower back disability is remanded. FINDING OF FACT The probative, competent evidence of record reflects that the Veteran’s right shoulder degenerative arthritis manifested to a compensable degree within one-year of separation from active service. CONCLUSION OF LAW The criteria for service connection for right shoulder degenerative arthritis have been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from June 1989 to October 1989 and September 2003 to November 2003, and on active duty from January 2013 to December 2013 and June 2017 to June 2018, to include service in the Southwest Asia Theater of Operations. The Veteran asserts that his right shoulder pain began during his deployment. He has asserted that his right shoulder pain is due to physical training, lifting and carrying heavy gear. See Undated Statement received December 2014. In his February 2016 Department of Veterans Affairs (VA) Form 9 he reported he was told that there is no clear evidence showing why his shoulder is hurting and asserted that the shoulder pain is due to an undiagnosed illness. 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran underwent VA examination in June 2014. The examiner diagnosed right shoulder strain and the Veteran reported that his right shoulder pain began in October 2013 and that he saw a private treatment provider. During the July 2018 VA examination the examiner diagnosed degenerative arthritis, labral tear including superior labral anterior-posterior lesion, supraspinatus tendinosis right shoulder, subacromial bursitis and spurring of the acromioclavicular joint. The Veteran reported his right shoulder results in pain, stiffness, and limitation of range of motion. He reported that he cannot lay on the right side at night. Service treatment records reflect that the Veteran was treated for right shoulder pain during deployment (See April 2018 treatment report) and diagnosed with rotator cuff tendonitis (See February 2018 treatment report). The record is absent enlistment or separation examinations prior to the Veteran’s final period of active service. At separation in May 2018, examination of the upper extremities was abnormal and the Veteran had right shoulder pain and limited range of motion with abduction and also behind the back abduction. The record reflects the Veteran was diagnosed with degenerative arthritis of the right shoulder within one year of his last period of active duty service. He reported that his right shoulder causes pain, stiffness, and limitation of motion. As noted, service records are absent enlistment and separation examinations concurrent with the Veteran’s periods of active service when he complained of shoulder pain and was treated during his deployment. There is no affirmative evidence to suggest that the disability was not incurred in service and there is no medical opinion against the claim. As arthritis is shown to be present in the year following separation from service, in-service incurrence can be presumed and service connection for degenerative arthritis is warranted. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). REASONS FOR REMAND The Veteran asserts that he was treated on active duty in May 2008 for lower back pain and diagnosed with lumbar strain. He asserts that he was in a car accident in December 2014 during active duty which further injured and caused pain to his lower back. See February 2016 VA Form 9. An April 2008 private treatment report reflects that the Veteran was diagnosed with a fractured coccyx in July 2007 and had residual pain with strenuous activity. A May 2008 Statement of Medical Examination and Duty Status report reflects that the Veteran complained of low back pain and right flank pain and he was injured while on “AT orders.” Lumbosacral strain and right flank pain were diagnosed. During the June 2014 VA examination the examiner diagnosed lumbosacral strain. The Veteran reported that his low back pain onset in August 2013 with right lower extremity tightness. A January 2015 sworn statement reflects that the Veteran was involved in a car accident in December 2014 and that he started feeling stiffness and pain in his back. He reported he was heading back to his hotel after his Judge Advocate General section was released from drill. A December 2014 Statement of Medical Examination and Duty Status reflects that the Veteran was injured in a car accident while on inactive duty training status. Service treatment records reflect that the Veteran’s lumbar spine was treated in theater and that he complained of recurrent back pain in-service. See April and May 2018 treatment reports. The May 2018 separation examination reflects abnormal spine, other musculoskeletal and low back pain with tenderness to the lumbar spine and paralumbar muscles on the left side. During the July 2018 VA examination the examiner diagnosed lumbosacral strain and intervertebral disc syndrome. The Veteran reported that he began having low back pain in 2013 and that all the carrying and lifting during his deployment made it worse. A VA medical opinion has not been obtained in connection with the Veteran’s service connection claim. The record reflects current low back disabilities and in-service treatment for the lower back. As such, remand is warranted to obtain a VA medical opinion. The Board also notes that additional records relevant to the claim have been added to the file since the last adjudication of the claim and a supplemental statement of the case must be issued before the Board can adjudicate this issue. The matter is REMANDED for the following actions: 1. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current lower back disability is related to an in-service injury, event, or disease (including but not limited to the incident of low back pain in May 2008 diagnosed as lumbar strain and the December 2014 motor vehicle accident) or was aggravated beyond natural progression during a period of active duty (January 2013 to December 2013 and June 2017 to June 2018). In offering the opinion, the examiner is asked to consider current diagnoses for lumbosacral strain and intervertebral disc syndrome, and the Veteran’s reports that he began having low back pain in 2013 and that all the carrying and lifting during his deployment made it worse. The May 2018 separation examination reflects an abnormal spine with tenderness to the lumbar spine and left paralumbar muscles. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 2. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel