Citation Nr: 18155214 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 17-48 002A DATE: December 3, 2018 ORDER Entitlement to service connection for a left shoulder disorder is denied. REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for vertigo is remanded. FINDING OF FACT A chronic left shoulder disorder was not demonstrated inservice, left shoulder osteoarthritis was not manifested to a compensable degree one year of separation from active duty, and a left shoulder disorder is not otherwise related to service. CONCLUSION OF LAW A left shoulder disorder was not incurred or aggravated in service and left shoulder osteoarthritis may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1993 to July 2006. In his October 2017 VA Form 9 appealing the issue of entitlement to service connection for a left knee disorder, the Veteran requested additional time to obtain a medical opinion regarding his left knee. Over one year has elapsed since that request and no further extension has been requested. Thus, the Board will proceed with adjudication of the issue. On the same October 2017 VA Form 9 the Veteran failed to indicate whether he was requesting a hearing in connection with his claim for service connection for a left knee disorder. In the January 2018 supplemental statement of the case addressing that issue, the Veteran was asked to submit an attached VA Form 21-4138 to clarify whether he wished to attend a hearing. The Veteran has not submitted any request for a hearing, and the Board thus finds the Veteran’s right to a hearing is waived. Left shoulder The Veteran contends that he has a left shoulder disorder, to include osteoarthritis, due to an October 1996 in-service fall. Service connection is established on a direct basis when there is 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. 38 U.S.C. §§ 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for arthritis may be established on a presumptive basis if the disorder was manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R §§ 3.307, 3.309(a). The question for the Board is whether the Veteran has a left shoulder disorder to include arthritis due to service, or whether left shoulder arthritis was manifested to a compensable degree within one year of discharge from active duty. After reviewing the evidence, the Board finds that while the Veteran now suffers from a left shoulder disorder, to include mild acromioclavicular osteoarthritis, neither that disorder nor any left shoulder disorder was demonstrated inservice. Further, left acromioclavicular osteoarthritis was not manifested to a compensable degree within a year of the appellant’s separation from active duty. Finally, there is no competent evidence showing a continuity of left shoulder symptomatology since service. As such, entitlement to service connection for a left shoulder disorder is denied. A review of the Veteran’s service treatment records reveals no evidence of a left shoulder injury or any treatment or complaints of left shoulder symptoms. On a February 2005 pre-deployment health assessment, the Veteran described his health as “excellent” and reported no medical problems. On an April 2006 report of medical assessment, the Veteran responded affirmatively to the question “have you suffered from any injury or illness while on active duty for which you did not seek medical care,” but only reported a right knee injury. A left shoulder disorder was not reported. The earliest medical evidence of treatment for a left shoulder disorder is a January 2015 VA treatment record. That record noted the appellant’s report of chronic left shoulder pain since October 1996 when he was “running up [a] hill in mud” and “was kicked in [the] back with bodies landing on him during [a] training exercise.” A February 2015 MRI of the left shoulder demonstrated “mild left acromioclavicular osteoarthritis” with “mild subdeltoid and minimal subacromial bursitis.” Preliminarily, the Board notes that no competent medical evidence supports the Veteran’s claim for service connection for a left shoulder disorder. While the appellant related that a doctor told him his shoulder injuries were consistent with overuse often seen in veterans, a lay person’s account of what a physician purportedly said, filtered as it is through a lay person’s sensibilities, is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Board acknowledges the Veteran’s report of the October 1996 injury with continuing left shoulder pain thereafter, as well as his report of left shoulder bruising following an explosively formed penetrator strike on his vehicle in 2005. However, he is neither competent to diagnose a left shoulder disorder to include arthritis, nor is he competent to opine that any current left shoulder disorder to include osteoarthritis or bursitis is related to an inservice injury. The diagnosis and etiology of these disorders is a question which is medically complex as they have multiple possible etiologies and require specialized testing to diagnose. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The evidence also shows that the Veteran’s current assertions that he suffered continuous left shoulder pain since the reported October 1996 injury are inconsistent with the contemporaneously prepared evidence of record. In this regard, his current assertions are contradicted by the contemporaneously prepared evidence from his active duty service which is silent for treatment of left shoulder symptoms, despite ample evidence of treatment for other maladies including orthopedic disorders. Significantly, the Veteran failed to disclose these symptoms despite numerous promptings over the course of his active-duty service. In April 2006, the Veteran responded to the question of whether he had any injuries for which he had not sought treatment during active duty, but only listed a right knee injury. In summary, the Veteran’s current assertions regarding the continuity of left shoulder symptoms lack credibility, particularly as these statements were made many years later during the course of an appeal from the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Based on the foregoing, there is no competent evidence that the Veteran’s current left shoulder disorder was incurred in service, that any current left shoulder disorder is related to any inservice event, or that left shoulder osteoarthritis manifested to a compensable degree within one year of separation from active duty. While the Veteran has not been afforded a VA examination regarding this claim, the Board does not find that there is adequate evidence indicating that there may be any relationship between his left shoulder disorder and his service. Accordingly, the low threshold under McLendon has not been met here and VA’s duty to provide an examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Thoracolumbar spine disorder The Veteran has not been provided a VA examination to address the nature and etiology of the claimed back disorder. In October 2017, Dr. J.S., a private physician, stated that the Veteran had a diagnosis of intervertebral disc displacement in the lumbosacral region, segmental and somatic dysfunction of the thoracic and lumbar regions, and muscle spasms of the back. Dr. J.S. opined that these disorders were at least as likely as not related to the Veteran’s active-duty service. While Dr. J.S. did not provide a rationale in support of his opinion, this competent medical evidence raises the possibility of a relationship between the Veteran’s back disorder and active-duty service. Remand is thus necessary to obtain an adequate examination to address the nature and etiology of the Veteran’s back disorder. Left knee disorder The Veteran has not been provided a VA examination to address the nature and etiology of the claimed left knee disorder. The Veteran has reported that his left knee pain began in 1996 when he attended jump school. In his October 2016 notice of disagreement, he contended that the left knee disorder was due to his many years of physical exertion on active duty, to include two Marine expeditionary unit deployments, three years in East Africa, and one year in Iraq. The Veteran also noted two “hasty evacuations,” from a seven-ton troop carrier, which required him to jump ten feet to the ground. A November 2001 service treatment record reveals that the Veteran experienced left knee tendinitis in boot camp with no sequelae. An April 2006 service treatment record noted a degenerative tear of the right knee secondary to a history of parachuting/reconnaissance, reinjured due to a jump from a “[seven]-ton.” No left knee pathology was reported. While the service treatment records are generally silent for a left knee disorder, the records do support a complaint of left knee tendonitis in boot camp, followed by repeated physical stress to the Veteran’s lower extremities. This evidence raises the possibility that the claimed left knee disorder may be related to his active-duty service. Thus, remand is necessary to obtain an examination to address this etiological theory. Vertigo In February 2016 a VA examiner opined that it was less likely than not that the Veteran’s vertigo was incurred in service or was related to in-service complaints of clogged ears. Subsequently, D.N., a private physical therapist opined that vertigo was related to “a central [traumatic brain injury],” and recommended additional MRI or CT scans of the brain. D.N. suggested that such additional evidence could substantiate a relationship between the Veteran’s vertigo symptoms and his reported inservice exposure to “three [improvised explosive device] blasts.” In October and November 2017, a new MRI of the brain and CT scan of the head were obtained respectively. The former report noted “subtle abnormal signal within the bilateral mastoid air cells” which “may be contributory to the patient’s symptoms.” Given D.N.’s opinion that additional diagnostic evidence might substantiate an inservice etiology of vertigo, remand is necessary to obtain a medical opinion to discuss whether this evidence supports an in-service etiology. Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed thoracolumbar spine and left knee disorders. For each thoracolumbar spine and left knee disorder diagnosed, the examiner must opine whether it is at least as likely as not related to an in-service injury, including the physical demands of the Veteran’s thirteen years of active-duty service, to include parachute jumps and two 10-foot jumps from a troop carrier. With regard to the thoracolumbar spine disorder, the examiner must address the October 2017 letter from Dr. J.S. that the Veteran’s diagnosed intervertebral disc displacement in the lumbosacral region, segmental and somatic dysfunction of the thoracic and lumbar regions, and muscle spasms of the back were at least as likely as not related to his active-duty service. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s vertigo is at least as likely as not incurred during active-duty service, to include due to a traumatic brain injury as a result of the reported exposure to three improvised explosive devices during service in Iraq. The examiner must address the August 2017 letter of D.N., the October 2017 brain MRI and the November 2017 head CT scan. The examiner must further address the Veteran’s reports of continuous symptoms of vertigo since 1994, as noted in the February 2016 VA examination report. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the   examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel