Citation Nr: 18154392 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 12-30 701 DATE: November 29, 2018 ORDER Entitlement to service connection for back disability is denied. Entitlement to service connection for right shoulder disability is denied. FINDINGS OF FACT 1. The weight of the evidence does not demonstrate that the Veteran’s back disability is due to disease or injury in service. 2. The weight of the evidence does not demonstrate that the Veteran’s right shoulder disability is due to disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from January 1969 to May 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A March 2015 Board decision denied the Veteran’s claim which was appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a March 2016 decision, the CAVC remanded the Veteran’s claims for service connection for right shoulder and lower back disability to the Board for further readjudication and to obtain any outstanding pertinent VA or non-VA medical records. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including a VA medical facility. 8 C.F.R. § 3.159 (c)(2). VA may only end its efforts to obtain such records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) In its August 2016 remand, the Board directed the RO to undertake all necessary efforts to obtain records which pertain to the Veteran from the Mountain View/Johnson City VA Medical Center (VAMC) for the period from 1975 to 1977, as the Veteran has claimed he received treatment for in-service injuries to his back and right shoulder during this period. In response to a September 2016 request the Mountain/Johnson City VAMC stated that such records could not be found. The Veteran was informed of this in a September 2016 letter as well. However, the Veteran contacted the RO and stated that 1975-1977 treatment records had been shipped to the Nashville VAMC. The RO first requested the records from the Nashville Office in November 2016, and made subsequent requests in May and July of 2017 and February of 2018. As of the date of the opinion no such treatment records have been located. The Board also indicated that the records of Dr. King should be obtained. In November 2017, records from Dr. King were submitted. The Board finds that all required development has been attempted and there has been substantial compliance with the Board’s August 2016 remand instructions. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability or persistent or recurrent symptoms of disability; (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) the evidence indicates that the current disability or symptoms may be associated with service or a service-connected disability; but (4) there is insufficient medical evidence on file to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). In both McLendon and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Court of Appeals for Veterans Claims (Court) and the U.S. Court of Appeals for the Federal Circuit clarified that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A (d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (medically competent evidence is not required in every case to “indicate” that the claimant’s disability “may be associated” with his service). The Veteran has not been provided a VA examination for either his back or right shoulder disability claims. However, the Board concludes that an examination and medical opinion are not needed to fairly decide this claim, as the record contains no competent and credible evidence suggesting that either claim is etiologically associated with service. Thus, the second and third McLendon elements are not satisfied with respect to this claim. The Board recognizes that the Court in McLendon held that the third element establishes a “low threshold,” and that a VA examination can be required based on medical evidence merely suggesting a nexus, even if it is too equivocal or lacking in specificity to support a decision on the merits. However, even considering this low threshold, there is no competent or credible medical evidence that suggests such a nexus. 1. Entitlement to service connection for back condition The Veteran asserts that service connection is warranted for a back disability, specifically retrolisthesis, from an injury he sustained during service. The provided private treatment records, dated March 2013, indicate that the Veteran is currently suffering from a back disability. Thus, the first element for service connection appears to be met. The provided medical records, while documenting the Veteran’s current back disability do not reference an inservice incident which could have reasonably caused it. The Veteran, while stating that the above referenced VA records from 1975 to 1977 document the inservice incident which led to his condition, has not provided any specific account of an inservice occurrence which could have caused his back injury. The service treatment records do not show any complaints, findings or a diagnosis of a back condition or a back injury during service. Moreover, while the Veteran’s entrance examination does note a curvature of the spine, the examination conducted upon discharge in May 1976 does not indicate any back or other spinal injuries. Additionally, the March 2013 private treatment record indicates that the Veteran had claimed his condition was caused by a work-related injury and makes no mention of an inservice incident. The record further notes that the Veteran’s back disability indicate that his condition is likely due to degeneration. While the Veteran has asserted that he believes his back disability was caused by his service, he is not competent to make such a determination, especially absent any contemporaneous medical evidence. As the record does not contain any evidence, medical or lay, of an in-service incident, nor any competent evidence of a nexus between the Veteran’s condition and his service, service connection is not warranted. 2. Entitlement to service connection for right shoulder condition The Veteran asserts that service connection is warranted for a right shoulder condition due to an injury he suffered during service. Per his private treatment records, the Veteran has range of motion limitation in his right shoulder, thus the first element of a current disability has been met. However, the record does not contain adequate documentation of an inservice incident. The above referenced private treatment records from March 2013 do not reference any inservice incident which could have led to the Veteran’s current condition. The Veteran has claimed that his VA treatment records document the in-service incident which caused his shoulder injury. However, such records have not been located despite multiple requests. Beyond this assertion, the Veteran has not provided any account of an inservice occurrence which could have reasonably led to his shoulder disability. The service treatment records do not show any complaints, findings or diagnosis of a shoulder condition or shoulder injury in service. In addition, his discharge examination conducted in May 1976 did not document any issues with his shoulder. While the Veteran has asserted that he believes his shoulder disability is a result of his military service, he is not competent to make such a determination. Thus, while the Veteran does appear to have a current right shoulder disability, there is no evidence of an in-service incident or shoulder injury during service. The Board finds that the weight of the evidence does not demonstrate that the right shoulder condition was incurred in service and the claim for service connection is denied. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Luby, Associate Counsel