Citation Nr: 18152105 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-43 689 DATE: November 20, 2018 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a lower back disability is denied. Entitlement to service connection for a psychiatric disorder, claimed as post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a right shoulder disability that 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 the Veteran has a low back disability that began during active service, or that is otherwise related to an in-service injury, event, or disease. 3. The evidence of record does not show that the Veteran is diagnosed with PTSD, and his intermittent explosive disorder and unspecified anxiety disorder are not causally related to active service or otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The service connection criteria for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The service connection criteria for a lower back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The service connection criteria for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training from July 2003 to May 2004, and active service in the United States Army from January 2008 to January 2009. The Veteran was deployed to Southwest Asia in 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 16, 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claims at issue above arise from a formal claim for benefits received by the RO in February 2014. Prior to that, however, in September 2013, the Veteran submitted an informal claim for service connection for a bilateral shoulder disability, a sleep disorder, a back disability, bilateral hip pain, a bilateral leg disability, a bilateral knee disability, a bilateral ankle disability, a bilateral foot disability, and a mental health condition. As claims for service connection for a right shoulder disability, a low back disability, and a psychiatric disorder were already adjudicated, no further action is needed for those claims. The Veteran’s claims for service connection for a left shoulder disability, a sleep disorder, a bilateral leg disability, a bilateral knee disability, a bilateral ankle disability, and a bilateral foot disability have not yet been considered, however, and they are referred to the RO for initial adjudication. Finally, the Veteran was previously represented by a private attorney. That attorney, however, withdrew representation in October 2016, prior to certification in this case. As the Veteran has not appointed a new representative, he is considered to be proceeding as unrepresented. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) 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. Id. 1. Entitlement to service connection for right shoulder disability To assess the Veteran’s claimed shoulder disability, the Veteran underwent a VA examination in May 2014. The examiner found that the Veteran was not then suffering from a right shoulder disability. Upon examination, the Veteran’s shoulders did not manifest any ankylosis or impairment of the humerus, clavicle or scapula. Both shoulders exhibited normal muscle strength and normal 180-degree ranges of motion for both flexion and abduction, with no objective evidence of painful motion for either type of motion. The Veteran ably performed repetitive-use testing with 3 repetitions and demonstrated normal ranges of flexion and abduction again after repetitive-use testing. There was no guarding or localized tenderness or pain on palpation of joints, soft tissue, and biceps tendons of either shoulder. Tests for rotator cuff conditions and instability, dislocation, and labral pathology were negative. The examiner reviewed imaging studies of the shoulder from August 2003 and found all views to be within normal limits, with no bony abnormalities. The examiner thus concluded that there is no evidence of loss of function of the shoulders impacting the Veteran’s ability to work. Service treatment records indicate that the Veteran was treated for a left shoulder injury, with notes regarding a shorter-term right shoulder injury as well. The examiner from the May 2014 VA examination noted that the Veteran’s right shoulder injury was “diagnosed and treated during active duty,” but by the time of that examination, the condition was “resolved.” Under Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018), pain itself can be a disability if it rises to the level of a functional impairment of earning capacity. For a successful claim, a Veteran must show that his pain reaches the level of a functional impairment of earning capacity. The Veteran has had the opportunity to augment the VA examiner’s report and VA treatment records with additional evidence and arguments regarding the right shoulder pain he endures, but the Veteran has made no other submissions regarding post-service shoulder pain, either via lay statements or through medical records. VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There is no clear evidence of a disability or functional impairment of the Veteran’s right shoulder. As the first element of service connection is not met, the Veteran’s claim for service connection for a right shoulder condition is denied. 2. Entitlement to service connection for lower back disability The Veteran underwent a VA examination in May 2014. At that examination, the Veteran reported that he first began developing lower back pain prior to service, when he was lifting boxes for moving in 2002. He recovered without surgery and began to experience back pain again post-service in 2012, without a triggering injury or event. He reported that his doctor ordered MRI imaging which revealed spinal stenosis, and he has been prescribed several medications to treat constant back pain. Upon examination, the Veteran’s ranges of motion for forward and lateral flexion, extension, and lateral rotation were less than normal before and after repetitive-use testing, with objective evidence of painful motion. The Veteran had pain localized to the soft tissue of the thoracolumbar spine. Intermittent pain in the right and left lower extremities showed radiculopathy. The examiner diagnosed the Veteran as suffering from lumbar spinal stenosis, satisfying the first element of service connection. For service connection to be awarded, the record must also show an in-service incurrence or aggravation of a disease or injury. Here, the Veteran reported no injury or event related to his back pain that occurred while in service. His service treatment records are silent as to any complaints or treatment for back pain or back injuries. The Veteran first experienced back pain in 2002, prior to entering either period of service, and his first reported recurrence of back pain was in 2012, two years after leaving service. Further, the record does not contain any evidence to show that the Veteran’s current back pain is due to an event that occurred in service. The only evidence in this regard comes from the May 2014 VA examination, in which the examiner determined that the Veteran’s current disability was less likely than not related to his active service. The examiner noted that the Veteran’s self-report of pain was from before service with no recurrence until after his separation. She also noted that there was no evidence of complaints of or treatment for back pain during service. Based on this evidence, the second and third elements of the criteria for service connection are not met. There is no doubt to be resolved, and the Veteran’s claim for a lower back disability must be denied. 3. Entitlement to service connection for a psychiatric disorder The Veteran asserts that his current psychiatric disorders are a result of his military service. To prove service connection for psychiatric disorders other than PTSD, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. First, the record shows that the Veteran has current diagnoses of intermittent explosive disorder and unspecified anxiety disorder. The Veteran underwent a VA examination in July 2014 which confirmed both diagnoses. The first element of service connection has been met. Next, as to an in-service event, injury, or disease and any connection between his current disorders and service, the evidence does not support a finding of any in-service incurrence, aggravation, or relationship of the Veteran’s current psychiatric disorders. According to the July 2014 VA examination report, no specific incident caused clinically significant distress during the Veteran’s time in the military. The Veteran reported that he was never involved in combat, and that he never experienced anything traumatic while deployed in Iraq. He was not diagnosed with or treated for any psychiatric conditions or symptoms while in service. Furthermore, he reported having significant issues with anger from childhood, resulting in numerous suspensions from school as well as an altercation in which he stabbed the other person. The Veteran described drinking heavily in response to getting married and having two young children, more than a year before he joined the military. Related occupational impairment is demonstrated by the Veteran’s holding numerous temporary jobs before joining the military. Thus, the VA examiner opined that is less likely than not that the Veteran’s current mental health symptoms were caused by his time in service; rather, the Veteran’s symptoms are more likely to have been triggered by events in his personal life outside of service. No other evidence has been received pertaining to an in-service incurrence of the Veteran’s mental health symptoms. The Veteran’s VA examiner in July 2014 also did not find that the Veteran’s service aggravated his psychiatric conditions beyond their natural progression. There were no specific incidents in service that could have caused a change, and the Veteran’s descriptions of his pre-military and post-military levels of psychological functioning did not demonstrate significant differences. Further, the VA examiner identified several stressors that are more likely to have caused any changes in the Veteran’s condition, including relationship problems, physical health issues, custody of the Veteran’s son, and financial concerns. As the record does not show that there was in-service incurrence or aggravation of an injury or disease related to the Veteran’s psychiatric conditions, the second and third elements of service connection are not met. Consequently, the Veteran’s claim for a psychiatric disorder must be denied. Finally, the Veteran specifically sought service connection for PTSD. However, there is no competent evidence that he has ever been diagnosed as suffering from that disorder. Again, the July 2014 VA examiner noted that the Veteran did not meet the criteria for a PTSD diagnosis, noting that the Veteran denied “any particular incident during his time in the military that causes clinically significant distress.” The examiner further noted that the Veteran reported “that he was never involved in combat and that he never experienced anything traumatic while deployed.” There is no competent evidence of a PTSD diagnosis, and absent any such diagnosis, his claim for service connection for PTSD must be denied. 38 C.F.R. § 3.304(f). Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Ahsan, Associate Counsel