Citation Nr: 18146883 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-05 887 DATE: November 1, 2018 ORDER Service connection for a right shoulder disability is denied. Service connection for a low back disability is denied. Service connection for a left hip disability is denied. Service connection for lung cancer due to asbestos exposure is denied. FINDINGS OF FACTS 1. The Veteran’s in-service right shoulder injury resolved during service, without causing a chronic disability. 2. The weight of the evidence is against finding that the Veteran had a chronic low back disability in service, and that it continued after service. 3. A chronic left hip disability was not shown in service, left hip arthritis was not diagnosed within one year of service discharge, and the weight of the evidence fails to establish that the Veteran’s current left hip disorder is etiologically related to his active service. 4. The Veteran does not have a current diagnosis of lung cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C §§ 1110, 1131; 38 C.F.R. § 3.303, 3.309. 2. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C §§ 1110, 1131; 38 C.F.R. § 3.303, 3.309. 3. The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.309. 4. The criteria for service connection for lung cancer have not been met. 38 U.S.C.§§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to July 1992. This matter is on appeal from an August 2012 rating decision. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 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 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, 1167 (Fed. Cir. 2004). Service connection may also 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). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). 1. Right Shoulder Disability The Veteran asserts that he suffers from a right shoulder disability as a result of his military service. Service treatment record show that he was seen in May 1980 after dislocating his right shoulder while pulling down a hatch. The physician diagnosed the Veteran with a strain and prescribed a sling. However, at a follow up appointment that same month, the Veteran reported that he had previously dislocated his right shoulder nine years earlier, while playing football. His enlistment examinations in April 1981, November 1986, and September 1991 all showed that the Veteran denied having a painful or trick shoulder. At his separation examination in July 1992, there were no clinical abnormalities to his right shoulder. Post-service, x-rays in August 2010 and February 2011 did not detect any right shoulder disability. The Veteran was later afforded a VA examination in August 2010 at which the VA examiner diagnosed the Veteran with a right shoulder strain and opined that it was less likely related to the Veteran’s military service. In reviewing the Veteran’s medical history, the examiner found that other than the 1980 complaint of a shoulder injury, there was no history of a chronic right shoulder condition. Upon separation from service, the Veteran did not demonstrate any signs of a shoulder disability. It was not until several years later in July 2010, when the Veteran complained of a right shoulder pain. The examiner also highlighted the Veteran’s football incident, which left his shoulder immobilized for approximately 2 weeks. After some complaints of pain, x-rays were taken in May 2013, but showed no abnormalities. However, an MRI dated June 2013 revealed an unfused os acromiale, which would be a source of dynamic impingement. The MRI also showed arthritis of the AC joint. X-rays in August 2013 showed a well-healed fracture deformity at the function of the middle and distal thirds of the right clavicle suggesting old trauma. There was no acute fracture or dislocation. In October 2013, the Veteran reiterated to a VA physician that he believed it was due to a dislocation in 1966. Upon physical examination, the VA physician found that the Veteran’s deltoids, biceps, and triceps all functioned normally. He could externally rotate 60 degrees and internally rotate 60 degrees. He was diagnosed with right shoulder arthralgia. By January 2015, the Veteran complained of increased right shoulder pain, stating that every motion was painful. Prior MRI imagining showed an intact rotator cuff. The physician noted that the Veteran’s neuromotor status was intact distally and his reported symptoms seemed “somewhat in excess” of objective findings. The Veteran returned for another consultation with continued reports of pain. The physician noted that he was unable to determine a diagnosis for a right shoulder disability and did not feel that any surgical intervention was needed. After reviewing the record, the Board finds that service connection for a right shoulder condition is not warranted. The record does not show that the Veteran was diagnosed with shoulder arthritis within one year of separation from service. This would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. While the Veteran did have a shoulder injury in service, the evidence does not suggest that the in-service injury resulted in a chronic right shoulder disability or otherwise relates to his current disorder. The Board notes that the Veteran had indicated several times that he had previously dislocated his shoulder prior to entering service. However, there was no chronic shoulder problems noted at enlistment, or at the time of his separation. Thus, the Board can reasonably conclude that the Veteran’s in-service right shoulder injury had resolved. The record does not contain evidence of a chronic shoulder disorder that resulted from service. The first sign of pain was reported approximately three decades after his military service. The Veteran has not submitted any medical evidence supporting his contention. The only probative medical evidence of record is the August 2010 VA examination report, which found no nexus between the Veteran’s in-service injury and his current disability. Consideration has been given to the Veteran’s allegation that his right shoulder disorder was due to his active service. He is clearly competent to report symptoms of shoulder pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the Veteran may describe shoulder pain, he lacks the medical training or qualification either to diagnose a right shoulder disability or to relate it to his active service. Id. Therefore, the weight of the evidence is against finding that a shoulder condition has existed continuously after service and the claim is denied. 2. Low Back Disorder The Veteran contends that his current back disability is related to an in-service injury after falling. Service treatment records show that the Veteran was seen in April 1980 after falling, and bending his left leg under his buttock. He complained of low back pain, but was nevertheless able to demonstrate full range of motion. He was instructed to take warm showers and rest in bed until he recovered. He was evaluated again in September 1980 where he reported muscle tightness, but still demonstrated full range of motion. Then in July 1985, the Veteran reported hurting his back again after moving a torpedo skid. He asserted loss of motion in his back but denied any radiating pain. He was prescribed Motrin and a heating pad. He denied having recurrent back pain on his reenlistment examinations in April 1981, November 1986, and September 1991. At his separation examination, the Veteran did not demonstrate any clinical abnormalities pertaining to his lumbar spine. Post-service, private treatment records in April 1999 showed that the Veteran complained of low back pain after falling from a roof landing in March 1998 in Pennsylvania, and again while working in a field with a tractor. Further testing revealed a disc herniation at L4-5 on the left side. He underwent an extensive total laminectomy at L5 with discectomy at that level. While he experienced a good recovery, he reinjured his back at work in October 1998. He underwent physical therapy, but showed no improvement and ultimately underwent a discectomy/laminectomy in January 1999. VA treatment records showed a low back disability in July 2010, when his x-rays revealed spondylosis at L4-L5. The Veteran was afforded a VA examination in August 2010. There, the examiner confirmed the disc herniation at L4-5 on the left with decompressive lumbar laminectomy at L4-L5, excision L4-L5 herniated disc with bilateral foraminotomies, laminectomy and disk excision with microscope for recurrent disk herniation at L4-5 on the left, and anterior/posterior fusion of the L4-5 with bone graft. The examiner opined that the Veteran’s current back disability was less likely than not related to his in-service injury. He reasoned that the Veteran’s disc herniation of the L4-5 resulted from the fall in March 1998, which required three separate surgeries to stabilize his back. Since then, the Veteran had complained of back pain. By January 2015, the Veteran still complained on continuous back pain. At a VA orthopedic clinic, the Veteran reiterated that he has had multiple back surgeries, starting in 1998, after an injury. The physician diagnosed the Veteran with low back pain, status post multiple surgeries, post laminectomy syndrome. After review of the record, the Board finds that service connection for a low back condition is not warranted. While there is a current disability, there is no indication that the Veteran was diagnosed with arthritis of the low back within a year after service. Thus, service connection on a presumptive basis is not warranted. Service connection is also not warranted on a direct basis as nexus between the Veteran’s current back disability and his in-service injury has not been established. The Board acknowledges that the Veteran complained of back pain in service, after a fall. However, a separation examination revealed that the pain had resolved and that there were no clinical abnormalities of the spine. Following service, the Veteran did not report a spinal condition for many years until 1999, after injuring his back in 1998. Since then, the Veteran had continuously reported back pain. While the passage of time is not dispositive, it is a factor that weighs against the Veteran’s claim. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran has not submitted any objective medical evidence that would support his contention. The most probative medical opinion is the August 2010 VA examination report, which failed to link the Veteran’s back disability to his in-service injury. While the Veteran has a lengthy medical history of a lumbar spine condition, the records however, fail to support a link between his disability and his military service. The Board concludes that the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the service connection claim for a low back disorder is denied. 3. Bruised Hip The Veteran contends that he sustained a hip disorder after an injury during service. Service treatment records show that the Veteran was evaluated in April 1980 after falling, and bending his left leg under his buttocks. While he complained of pain, he demonstrated normal strength in the left extremity. He denied “bone, joint, or other deformity, arthritis, rheumatism, or bursitis” on his enlistment examination in April 1981, November 1986, and September 1991. His separation examination in July 1992 revealed no left hip abnormalities. Post-service, the Veteran did not complain of a hip condition until July 2010. A follow up x-ray conducted that same month did not reveal any abnormalities. X-rays taken in May 2013 showed no acute fracture or dislocation of the left help. It did however show mild degenerative changes. At his August 2010 VA examination, the examiner diagnosed the Veteran with a left help strain, but opined that it was less likely related to his military service. The examiner reasoned that after service, there was no further mention of chronic issues of the left hip until 20 years after service when he complained when his leg gave way in July 2010. By April 2015, the Veteran continued to complain of hip pain and reported using a cane. The Board notes that the Veteran does have degenerative changes in his hip. However, without a diagnosis of arthritis within a year after separation of service, service connection on a presumptive basis is not warranted. The Veteran’s service connection claim also does not prevail on a direct basis. The Veteran has not submitted any medical evidence to support that his left hip disorder either began during or was otherwise caused by his military service. VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. However, the probative August 2010 VA examination report found that it was less likely that the Veteran’s current hip condition is related to his military service. Consideration has been given to the Veteran’s allegation that his right hip disorder was due to his active service. He is clearly competent to report symptoms of right hip pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the Veteran may describe left hip pain, he lacks the medical training or qualification either to diagnose a left hip disability or to relate it to his active service. Id. Accordingly, the criteria for service connection have not been met for a left hip disorder. That is, the evidence does not show that a chronic left hip disorder was diagnosed in service or within a year of service and the weight of the evidence is against a finding that a left hip disorder has existed continuously since service. The medical opinion of record has also concluded that a current left hip disability neither began during nor was otherwise caused by the Veteran’s military service Therefore, the claim is denied. 4. Lung cancer due to asbestos exposure The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant’s claim for service connection for asbestosis or asbestos related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993). There is no specific statutory guidance with regard to asbestos-related claims, nor has the VA Secretary promulgated any regulations in regard to such claims. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer, and mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Veterans Court found that there is no presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. VAOGCPPREC 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. The Veteran’s military personnel records show that the Veteran’s primary occupational specialty of submarine sonar basic maintenance technician. Thus, exposure to asbestos during service was conceded by VA. However, asbestos exposure alone does not mandate service connection. Rather, the evidence of record must show that such exposure caused a chronic disability. The Veteran’s service treatment records are negative for complaints, treatment, or diagnosis of lung cancer. Since his separation from service, objective medical evidence failed to indicate a diagnosis of lung cancer. Chest x-rays taken in May 2013 showed no acute cardiopulmonary disease, no nodule seen in the right upper lobe, and a calcified granuloma in the left upper lobe. Tests were negative for lung cancer or any other respiratory condition caused by asbestos. As of date, the Veteran has not submitted objective evidence indicating cancer of the lungs. Thus, in the absence of a current primary lung cancer disability, service connection cannot be granted for it. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel