Citation Nr: 18154301 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-22 963 DATE: November 29, 2018 ORDER Service connection for a left shoulder disability is denied. Service connection for a back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran’s left shoulder disability did not have its onset during service and is not otherwise is not related to service. 2. The preponderance of the evidence shows the Veteran’s back disability did not have its onset during service and is not otherwise is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1965 to June 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and December 2011 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Oct 2011 decision denied service connection for left shoulder disability (listed as a left shoulder condition). The December 2011 denied service connection for a back disability (listed as back condition). The Veteran died in March 2013 during the pendency of his appeal. The appellant has been substituted as the claimant for the purposes of processing the Veteran’s claims on appeal to completion. 38 U.S.C. §5121A. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Left Shoulder Disability The Veteran contended that he had a left shoulder disability that was related to service. He specifically maintained that he injured his left shoulder in a February 1979 automobile accident, that his condition was further aggravated during the course of his military service, that it was recurrent throughout his life since that time and was further aggravated by a second accident in 1999, after service. See June 2012 Notice of Disagreement. The Veteran was competent to report left shoulder problems during service and since service. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, although the Veteran is competent to report his symptoms, lay persons are not competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), and the issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran was not competent to provide an opinion as to causation for this particular claim. A February 1979 treatment report reflects the Veteran was involved in an automobile accident where he suffered multiple traumas to the head, right shoulder and neck as a result of the motor vehicle accident. The Veteran’s February 1979 treatment notes show a diagnosis of dorsal spine and dorsal spine strain, as well as right trapezius, paravertebral and right pectoralis. The Veteran’s April 1985 retirement examination notes the Veteran had pain and swelling in his shoulders when he was very active in sports. A September 1999 chiropractic report, shows the Veteran showed the Veteran had left shoulder depression. In February 2010, the Veteran’s chiropractor indicated the Veteran had left shoulder pain of long duration. However, he did not provide a nexus opinion regarding etiology of the Veteran’s left shoulder condition and service. In October 2017, the Board remanded this issue after determining there were no responsive medical opinions of record. Accordingly, the issue was remanded for a medical opinion as to whether it was at least as likely as not that that any diagnosed left shoulder disability was etiologically related to or had its onset during the Veteran’s period of service. In December 2017, the VA medical examiner indicated that the Veteran’s left shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner reported that he reviewed the Veteran’s STRs and remand letter showing the Veteran was involved in a motor vehicle accident in February 1979. He noted there was mention of a right shoulder injury, abdominal injury and head/neck injury from this incident and he was seen in a clinic and not the emergency room. However, there was no mention of a left shoulder problem and this was noted in the remand letter. Additionally, the examiner noted that there were not STRs showing any type of left shoulder condition. The VA examiner concluded that based on the evidence, the Veteran’s left shoulder conditions were less likely than not related to military service. The Board acknowledges the Veteran’s honorable service. Nonetheless, given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection a left shoulder disability must be denied. The Board has considered the applicability of “benefit of the doubt” doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. See 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001); Gilbert, supra. Back Disability The Veteran asserted that he had a back disability that was related to service. He specifically maintained that he injured his back in a February 1979 automobile accident, during service, that this condition was further aggravated during the course of his military service, that it was recurrent throughout his life since that time and was further aggravated by a second accident in 1999, after service. See June 2012 Notice of Disagreement. The Veteran was competent to report back problems during service and since service. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, although the Veteran is competent to report his symptoms, lay persons are not competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), and the issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran was not competent to provide an opinion as to causation for this particular claim. The Veteran’s February 1979 service treatment report reflects the Veteran was seen for multiple traumas to the head, neck, right shoulder and abdomen after an motor vehicle accident in February 1979. The Veteran was diagnosed with cervical and dorsal spine strain. In October 2017, the Board remanded the claim for entitlement to service connection for a back disability for a responsive medical opinion regarding the etiology of the Veteran’s claimed condition. In December 2017, a VA examiner provided a medical regarding the back claim. The VA examiner opined, that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned, that after review of the Veteran’s records which included STRs and the remand letter, it showed the Veteran was involved in a motor vehicle accident in February 1979. He noted there was mention of a right shoulder injury, abdominal injury and head/neck injury from this incident and he was seen at a clinic and not the emergency room. The VA examiner indicated there was no report of a lumbar spine problem. There were complaints of low back pain in the STRs in 1997 but not on the separation examination. He indicated there was no evidence of complaints of chronic recurrent back pain. He concluded that the Veteran’s back condition was less likely than not related to military service. The VA examiner did note that the Veteran reported pain in the cervical and dorsal spine areas after his February 1979 motor vehicle accident. He documented, the Veteran’s February 1979 radiological report as to the Veteran’s thoracic spine, notes an impression of a normal study. Additionally, the VA examiner acknowledged an additional February 1979 service treatment entry, on the same day, and following the x-rays of the cervical and dorsal spine, related a final diagnosis of cervical and dorsal spine strain. The Board acknowledges the Veteran’s honorable service. Nonetheless, given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a back disability, and the claim must be denied. The Board has considered the applicability of “benefit of the doubt” doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. See 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001); Gilbert, supra. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel