Citation Nr: 18142403 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-00 460 DATE: October 15, 2018 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to a disability rating greater than 10 percent for service-connected right hip osteoarthritis is remanded. Entitlement to a disability rating greater than 10 percent for service-connected residuals of right ankle fracture is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right shoulder disability began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a low back disability began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that radiculopathy of the right lower extremity began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1983 to February 1986. In July 2018, he testified at a Board hearing. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Certain chronic diseases, such as arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Entitlement to service connection for a right shoulder disability, a low back disability, and radiculopathy of the right lower extremity. The Veteran asserts that he has a right shoulder disability, a low back disability, and radiculopathy of the right lower extremity, as a result of motor vehicle accident that occurred during his period of active service. During the July 2017 Board hearing, he suggested that he sustained the respective injuries in a June 1984 motor vehicle accident in which he also injured his right hip and right ankle—for which service connection has already been established. He described that following the accident, his right arm was placed in a sling, but that he did not receive treatment for it until many years after service. Similarly, he indicated that he did not seek treatment for the low back and right lower extremity until many years after service as the symptoms developed progressively over time. The question for the Board is whether the Veteran has the respective current disabilities that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has respective current diagnoses related to the right shoulder, low back, and right lower extremity, the preponderance of the evidence weighs against finding that the such diagnoses began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records reveals that there were no complaints of or treatment for a right shoulder disability, a low back disability, or radiculopathy of the right lower extremity during his period of active service. Reports of medical history completed by the Veteran in October 1985, March 1986, and February 1988 each show that the Veteran indicated that he had never had painful or “trick” shoulder; recurrent back pain; arthritis, rheumatism, or bursitis; lameness; bone, joint, or other deformity; foot trouble; neuritis; or paralysis. Following service, VA outpatient treatment records beginning in 2008 show reported treatment for symptoms associated with a low back disability with radiculopathy. A VA examination report dated in January 2011 shows that the Veteran reported injuring his right shoulder in the in-service motor vehicle accident. He described that he could not move his shoulder for about one month following the accident, but that he did not receive any treatment for it during service or since discharge from service. Physical examination revealed a diagnosis of right shoulder impingement syndrome and mild acromioclavicular joint osteoarthritis. The examiner opined that it was less likely as not that the right shoulder disability was caused by the in-service motor vehicle accident. The examiner explained that there was no indication of a shoulder injury in service, and there had been no treatment for symptoms for more than 20 years thereafter, making a chronic condition and association to service less likely. The January 2011 VA examination report also showed that the Veteran reported injuring his low back the in-service motor vehicle accident, but that he received no treatment for it during service. He indicated that he experienced current low back pain with radiating pain into the right lower extremity. He noted that he first sought treatment at VA in 2008, wherein lumbar herniated discs were discovered, but that he did not follow up. He added that he had not sought treatment with a private medical care provider. Physical examination revealed a diagnosis L5-S1 degenerative disc disease with right S1 radiculopathy. The examiner opined that it was less likely as not that the low back disability with accompanying radiculopathy was caused by the in-service motor vehicle accident. The examiner explained that there was no indication of a low back injury in service, and there had been no treatment for symptoms for more than 20 years thereafter, making a chronic condition and association to service less likely. The Board finds that medical opinions of the January 2011 VA examiner to be probative, because they were based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The medical opinions establish that the Veteran’s respective disabilities are not at least as likely as not related to an in-service injury, event, or disease, including the June 1984 motor vehicle accident. The Veteran has not provided any competent medical evidence to rebut the opinions against the claims or otherwise diminish their probative weight. Also, there is no diagnosis of arthritis of the right shoulder or low back during the first year following separation from active service, thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran believes that his right shoulder and low back disabilities, with accompanying right lower extremity radiculopathy, are related to an in-service injury, event, or disease, to specifically include the June 1984 motor vehicle accident, he is not competent to provide a medical nexus opinion in this case. The issues are medically complex, as they require specialized medical knowledge that the Veteran has not demonstrated that he possesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinions of the VA medical examiner. Given the medical evidence against each claim, for the Board to conclude that the Veteran’s right shoulder disability, low back disability, and radiculopathy of the right lower extremity were incurred during service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). REASONS FOR REMAND Entitlement to increased disability ratings for service-connected right hip osteoarthritis and residuals of right ankle fracture. During the July 2018 Board hearing, the Veteran indicated that his service-connected right hip and right ankle disabilities had increased in severity since his most recent VA examinations that took place in October 2014. Where a Veteran asserts that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the state of the condition, VA must provide a new examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his service-connected right hip and right ankle disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right hip and right ankle disabilities alone and discuss the effect of such disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel