Citation Nr: 18148160 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-38 887A DATE: November 6, 2018 ORDER New and material evidence having been received, the claim for service connection for a back disability is reopened. New and material evidence having been received, the claim for service connection for a right shoulder disability is reopened. New and material evidence having been received, the claim for service connection for sinusitis is reopened. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. In an August 1999 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a back disability, right shoulder disability, and sinusitis; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the August 1999 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a back disability, right shoulder disability, and sinusitis. 3. The Veteran’s back disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 4. The Veteran’s cervical spine disability did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The portion of the August 1999 rating decision denying service connection for a back disability, right shoulder disability, and sinusitis is final. 38 U.S.C. § 7105 (West 1991); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (1999). 2. New and material evidence has been received and the claim seeking service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received and the claim seeking service connection for a right shoulder disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received and the claim seeking service connection for sinusitis is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a cervical spine disability are not met. 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to July 1999, to include service in Southwest Asia. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision by a VA RO. In May 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. At the Board Hearing the Veteran waived RO review of any evidence added to the file since the last adjudication of the claims. 38 C.F.R. § 20.1304(c). New and Material Evidence to Reopen Claims for Service Connection If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claims of service connection for a back disability, right shoulder disability, and sinusitis in an August 1999 rating decision, finding that there was no evidence of a permanent or residual disability for any of the claimed disabilities. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final as to these claims. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1999). The evidence received since the August 1999 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. Regarding the back claim, the Veteran asserts he hurt his back first jumping out of the back of a truck with a full load and later when he was a passenger in a motor vehicle accident. He states that ever since service, he has experienced back pain. An October 2012 X-ray demonstrated severe degenerative disc disease at L4-L5 in the lumbar spine. Regarding the right shoulder claim, the Veteran asserts he injured his right shoulder playing flag football in service. The injury was diagnosed thereafter with several diagnoses: as a right shoulder strain, possible rotator cuff tendonitis, possible tear of the right rotator cuff, and a right shoulder separation. Since service, the Veteran has received treatment in October 2012 for right shoulder tendinopathy and X-rays demonstrated degenerative arthritis in the acromioclavicular (AC) joint of the right shoulder. The Veteran also states that he has continuing pain with his right shoulder, which he attributes to the football injury. Regarding sinusitis, the Veteran was treated for sinusitis twice in service, December 1985 and June 1998. Since separation, the Veteran has been treated at least twice for sinusitis, April 2004 and June 2012. Both treatment records and the Veteran’s testimony state the Veteran has sinusitis annually. This new evidence addresses the reason for the previous denials; that is, current disabilities, and raises a reasonable possibility of substantiating the claims. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus, 3 Vet. App. at 513. Accordingly, the claims are reopened and will be considered on the merits. Service Connection 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). 1. Back disability The Veteran contends that a June 1990 motor vehicle accident in service caused his current back disability. Service treatment records note the June 1990 motor vehicle accident and the Veteran’s reports of posterior neck pain and low back pain at the time. After examination and review of X-rays it was determined the Veteran had a cervical neck and low back strain. The Veteran also reports hurting his back when jumping from a helicopter during training while loaded down with gear, although this is not recorded in the service medical records nor are any ongoing back problems. The Veteran has reported he did not seek medical attention for the injury when jumping from a helicopter. The Veteran’s December 1998 retirement examination report shows a normal evaluation of the spine. In the report of medical history completed by the Veteran he specifically denied having had recurrent back pain. To the extent the Veteran now contends he has had back pain since the 1985 incident, and continuing during and after service, the Board finds these statements lacking credibility as they are in direct conflict with his statements at the time of retirement when an examination was performed for the purpose of identifying disability. Arthritis is not shown during service or in the first year after the Veteran’s retirement from service. Continuity of symptomatology resulting in a future diagnosis of arthritis is also not shown. Notably, examination of the spine was normal at the time of the Veteran’s retirement and he denied having back pain at that time. Thus, arthritis cannot be presumed to have been incurred during service. See 38 C.F.R. §§ 3.307, 3.309(a). While the Veteran currently has degenerative spine and disc disease of the lumbar spine, VA and private treatment records show the Veteran was not diagnosed with this disability until 2009, years after his retirement from service. The Veteran was afforded a VA examination in June 2013. The examiner opined that the current back disability was not caused by or a result of service. The examiner explained that the balance of the evidence does not support a finding that there was a significant back injury causing chronic problems from the service. The examiner found it significant that there were only sporadic, and not constant, episodes of back pain since the helicopter incident, the normal X-rays of the back after the motor vehicle accident, and the denial of recurrent back pain at the time of retirement from the military. The Board finds this opinion highly probative as it was made by a medical professional after review of the pertinent evidence, to include the Veteran’s lay statements, and contains a rationale explaining why the adverse conclusion was reached. Moreover, other evidence of record is consistent with the examiner’s findings. For example, approximately 9 years after the motor vehicle accident and over a decade after the helicopter incident, the Veteran was afforded a retirement examination for the purpose of identifying current disabilities and evaluation revealed no spinal problems and the Veteran at that time denied having experienced recurrent back pain. Further, there is no medical evidence in significant conflict with the opinion of the VA examiner. In summary, the preponderance of the evidence is against a finding that the Veteran has a current back disability that was caused by service. Thus, the claim for service connection is denied. 2. Neck disability The Veteran contends that a June 1990 motor vehicle accident in service caused his current neck disability. Service treatment records note the June 1990 motor vehicle accident and the Veteran’s reports of posterior neck pain and low back pain at the time. After examination and review of X-rays it was determined the Veteran had a cervical neck and low back strain. The Veteran also reports hurting his neck playing soccer during service, although this is not recorded in the service medical records nor are any ongoing neck problems. The Veteran’s December 1998 retirement examination report shows a normal evaluation of the spine and neck with the exception of a cyst on the neck. In the report of medical history completed by the Veteran in connection with that examination he made no indication of having any neck problems. Arthritis is not shown during service or in the first year after the Veteran’s retirement from service. Continuity of symptomatology resulting in a future diagnosis of arthritis is also not shown. Notably, examination of the neck and spine was normal at the time of the Veteran’s retirement and he did not report any issues with his neck when asked in connection with his retirement examination. He currently has degenerative disc disease. Thus, arthritis cannot be presumed to have been incurred during service. See 38 C.F.R. §§ 3.307, 3.309(a). While the Veteran currently has degenerative disc disease of the cervical spine, VA and private treatment records show the Veteran was not diagnosed with this disability until June 2013, years after his retirement from service. The Veteran was afforded a VA examination in June 2013. The examiner attributed the Veteran’s neck symptoms to age-related, mild degenerative spine disease, and opined that the neck disability was not caused by or a result of service. The examiner explained that there was no evidence supporting a neck injury of sufficient severity during service to cause chronic problems later in life. The Board finds this opinion highly probative as it was made by a medical professional after review of the pertinent evidence, to include the Veteran’s lay statements, and contains a rationale explaining why the adverse conclusion was reached. Moreover, other evidence of record is consistent with the examiner’s findings. For example, approximately 9 years after the motor vehicle accident the Veteran was afforded a retirement examination for the purpose of identifying current disabilities and evaluation revealed no degenerative disc disease or other problems with the neck other than a cyst. Further, there is no medical evidence in significant conflict with the opinion of the VA examiner. The Board has considered the Veteran’s statements, to include his assertions that he had neck pain during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Notably, this opinion took into account the Veteran’s reports of pain during service yet still found against a connection to service. In summary, the preponderance of the evidence is against a finding that the Veteran has a current cervical spine disability that was caused by service. Thus, the claim for service connection is denied. REASONS FOR REMAND 1. Right shoulder disability As noted above, the Veteran injured his right shoulder playing flag football in service. The service providers made several diagnoses after the injury: a right shoulder strain, possible rotator cuff tendonitis, possible tear of the right rotator cuff, and a right shoulder separation. The June 2013 VA examiner diagnosed right shoulder pain, degenerative joint disease of the AC joint and rotator tendonitis, and noted a suspicion of a right rotator cuff tear. The negative opinion provided by the examiner appears to focus primarily on the degenerative joint disease. As such, another medical opinion should be obtained regarding the rotator cuff issues. 2. Sinusitis The Veteran was seen during service, for sinusitis. He also was seen multiple times for other conditions that included sinus symptoms such as upper respiratory infections and pharyngitis. The June 2013 VA examiner concluded the Veteran did not have current chronic sinusitis as there was no evidence of such on a CT scan; there was mild mucosal thickening in areas not pertaining to the left frontal sinus which is the area where he indicates he has recurrent symptoms. The examiner stated the Veteran’s annual sinusitis is caused by upper respiratory infections, viral illness, and smoking. The Board finds this report somewhat confusing in that it indicates there is no chronic sinusitis yet there is annual sinusitis. An additional opinion is necessary to address the nature and etiology of the symptoms claimed as sinusitis. Moreover, given the previous indication that there is no current chronic sinusitis, on remand the possibility of symptoms as a result of an undiagnosed illness should be addressed. Ongoing medical treatment records should also be associated with the file. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his right shoulder and sinusitis claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, 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 a current right shoulder disability, to specifically include a right rotator cuff disability, is related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider the flag football injury in October 1994 with treatment until approximately March 1995, including the suggestion of in-service right shoulder separation and a tear and/or tendinopathy of the right rotator cuff. 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. 3. After records development is completed, the Veteran should be afforded a VA respiratory examination to determine the nature of any respiratory disability, to include recurrent sinusitis and recurrent upper respiratory infections, and to obtain an opinion as to whether such is related to service. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should address the following: (a) Please list all diagnoses accounting for the claimed sinusitis and upper respiratory complaints. If it is determined that the Veteran has annual sinusitis but not chronic sinusitis, the examiner is asked to explain the difference in these conditions. (b) For each diagnosed disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is related to an in-service injury, event, or disease, to include the complaints of upper respiratory symptomatology and sinusitis during service. (c) If any sinus or upper respiratory symptom is not attributable to a known diagnosis, the examiner should address the current severity and impairment resulting from the symptom(s) and whether the symptom(s) is related to an undiagnosed illness consistent with the Veteran’s Southwest Asia service. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel