Citation Nr: 18158084 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-10 973 DATE: December 14, 2018 ORDER Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. REMANDED Entitlement to service connection for a left wrist disorder is remanded. Entitlement to service connection for a right wrist disorder is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc disease, lumbar spine, is remanded. Entitlement to service connection for right knee degenerative joint disease (DJD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a neck disorder due to a disease or injury in service. 2. The preponderance of the evidence is against finding that the Veteran has a left shoulder disorder due to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 1980 to November 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013 and November 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s representative requested his Board hearing be rescheduled after he missed his March 1, 2018 hearing. The hearing was rescheduled for October 12, 2018, but the Veteran failed to appear for the rescheduled hearing. Moreover, he did not thereafter show good cause for not appearing under such circumstances that a timely request for postponement was possible. Therefore, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). The Board further notes that the Veteran was previously represented by Attorney Alexandra Jackson; however, representation was withdrawn in October 2018. Under 38 C.F.R. § 20.608 (b) (2017), representation may be withdrawn after the certification of appeal if a motion showing good cause for the withdrawal is submitted. In an October 2018 statement, the attorney stated that she has been unable to contact the Veteran in this matter. See the October 2018 Withdrawal From Case statement. As good cause has been shown for withdrawal of representation, the motion has been granted. See 38 C.F.R. § 20.608 (b). The Veteran is now unrepresented. 38 C.F.R. § 20.608 (a) (2017). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Entitlement to service connection for a neck disorder is denied. The Veteran contends that he is entitled to service connection for a neck disorder because he has chronic pain with limited mobility. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a neck disorder. A neck disability is not shown in service; arthritis of his neck is not shown within the initial post separation year; and his neck disorder is not attributable to service. Service treatment records (STRs) reflect no complaints or findings for an abnormal neck disorder pathology. While the Veteran’s STR’s show that he had recurring back pain, the pain was attributed to his lower back (lumbar) and not his neck (cervical). Neck pain or problems with his neck were not reported by the Veteran at his separation examination. However, the Veteran’s medical records do indicate the Veteran has had problems with his neck after service. A November 2010 x-ray reported that the Veteran had reversal of the normal cervical lordosis and moderate degenerative changes. The Veteran was treated for left neck pain radiating to his lateral upper arm and numbness in his left thumb in April 2013. It was reported that an EMG suggested that the Veteran had cervical radiculopathy. Later, in July 2013, he complained of neck pain after falling off of a wall. In August 2013, the Veteran complained that his neck was “killing him” after he had to sweep sidewalks, move chairs, and vacuum. While there is sufficient evidence that the Veteran has a current disability of degenerative arthritis and, possibly, cervical radiculopathy, the medical evidence does not show that this current disability is related to service. The Board finds his STR’s probative to this determination. His exit examination in October 1980 did not indicate he had problems with his neck. As the Veteran reported problems with other injuries, such as his knee, at this examination, the Board finds that the Veteran would have noted neck problems if they had occurred during service. As the Veteran’s STR’s do not indicate an in-service injury or treatment, the neck condition claim does not meet the low threshold requirements of McClendon, and VA was not required to afford him an examination on this claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). On balance, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is denied. 2. Entitlement to service connection for a left shoulder disorder is denied. Like his neck, the Veteran contends that he is entitled to service connection for his left shoulder because he has chronic pain with limited mobility. However, after reviewing the evidence of record the Board finds that the preponderance of the evidence is against service connection for the left shoulder. A left shoulder disability was not noted in his STR’s and his left shoulder disorder is not attributable to service. The Veteran’s STRs do not contain complaints, treatments, or a diagnosis of a left shoulder condition. His separation examination does not report issues with his left shoulder. While it was checked that he had “swollen or painful joints” on his separation examination, the physician’s summary did not attribute this to his shoulder. After service, the Veteran’s medical records show a pathology of problems with his left shoulder. In November 2010, he was seen for back pain. He detailed an incident from service which was the cause of his back pain; but he also discussed his left shoulder and arm tenderness. However, he denied any specific injury that caused the pain in his left shoulder and arm. He also mentioned that the pain had been present for 3-4 years. In 2011, he reported pain in his left shoulder since an EMG study. In April 2013, he complained of neck pain radiating to his upper arm, but this consultation indicates this pain was related to his cervical radiculopathy. Also in 2013, he complained of pain in his left shoulder after falling of a wall, and underwent physical therapy for his shoulder in 2013. While the Board finds that the Veteran has a current disability of a left shoulder disorder, the preponderance of the evidence does not indicate this disorder is related to service. The Veteran’s STR’s do not report a diagnosis or treatment for a left shoulder disorder. Additionally, a shoulder disorder was not reported at separation. While there is medical evidence of a left shoulder pathology, the record does not support a finding that this left shoulder disability is related to service. Since the Veteran’s STR’s do not indicate an in-service injury or treatment for his left shoulder, this claim does not meet the low threshold requirements of McClendon, and VA was not required to afford him an examination on this claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). On balance, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is denied. REASONS FOR REMAND 3. Entitlement to a left wrist disorder is remanded. The VA has a duty to assist, which includes providing a medical examination when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran’s medical records indicate he suffers from carpal tunnel in his left and right wrists. He was issued wrist splints for his carpal tunnel in August 2013. Additionally, on his separation examination he reported that he had the “inability to assume certain positions” because he hurt his wrist during range detail. This evidence triggers the VA’s duty to assist. However, a VA examination to discuss the nature and etiology of the Veteran’s left wrist disability has not been provided. Therefore, a remand for a VA examination to determine the etiology of the Veteran’s his left wrist condition is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to a right wrist disorder is remanded. As stated above, the Veteran’s medical records indicate that he has carpel tunnel in his right wrist. Additionally, at his October 2013 examination, he was diagnosed with degenerative joint disease (DJD) in his right wrist. At separation, as mentioned in the left wrist section, he reported that he could not assume certain positions due to an unspecified (right or left) wrist that was hurt during range detail. As such, a current disability and an inservice incurrence is met for this claim. However, a remand is necessary because the examination on record is not adequate. The Veteran underwent a VA examination in October 2013 where the examiner reported that the claims file showed no history or trauma to his right wrist. The examiner cited the inservice medical record from September 15, 1980 that reported the Veteran complained of trauma to his right hand, but “NOT at the wrist.” However, as discussed above, the Veteran’s separation examination reports that the Veteran had an inability to assume certain positions because he hurt his wrist on range detail. As such, the October 2013 VA opinion relied on inaccurate factual premise, and the Board finds the negative nexus opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a remand is needed for an adequate opinion. 5. Entitlement to a rating in excess of 20 percent for degenerative disc disease, lumbar spine, is remanded. In view of a recent decision of the Court of Appeals for Veterans Claims (Court), a remand is necessary. In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Court held that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, the most recent report of VA examination does not reflect the necessary testing or findings. Therefore, a remand is necessary for a new VA examination of the lumbar spine. 6. Entitlement to service connection for right knee degenerative joint disease (DJD) is remanded. At his October 2013 VA examination, it was reported that the Veteran has a current disability of DJD in his right knee. At this examination, he reported that a gun rack fell on his right knee during service, and he has had intermittent pain with his right knee since then. His STRs indicate an inservice pathology for the right knee. At separation, he reported having a tricked or lock knee and a past medical history (PMH) of pain in his right knee. Moreover, in September 1980, a radiology report indicated that the Veteran had normal findings after having pain for many weeks in his right knee. As such, the first two elements of service connection have been met. However, a remand is necessary because the medical opinion of record is not adequate. Similar to the opinion for his right wrist, the examiner opined that the Veteran’s DJD in his right knee was less likely than not incurred in or caused by service. He noted that the Veteran complained of his right knee giving out when running or walking in September 1980. He also stated that there was no documented history of trauma that could provide a nexus for the development of DJD in the right knee. However, as stated above, the physician’s notes at his separation examination reported that the Veteran had a medical history of pain to his right knee, and the Veteran specifically indicated that he had a tricked or locked knee at separation. However, this was not addressed by the VA examiner. Nor were the Veteran’s contentions that he has had intermittent pain in his right knee since service. Accordingly, the VA opinion is inadequate, and a remand is needed for an adequate etiology opinion. The matters are REMANDED for the following action: 1. Obtain updated medical records, including private and VA, and associate them with the record. All records/responses received must be associated with the electronic claims file. 2. After completing directive (1), obtain an addendum opinion from a VA examiner, other than the October 2013 examiner, to determine the nature and etiology of the Veteran’s left and right wrist disorders. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiry: a. Is it at least as likely as not that the Veteran’s left or right wrist disorder was either incurred in, or otherwise related to, the Veteran’s active duty service? A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should be afforded a VA examination to evaluate the current severity of his service-connected DJD lumbar spine disability using the most recent DBQ form. The claims folder, including a copy of this remand, should be made available to the examiner for review prior to the examination. The examiner should acknowledge such review in the examination report. Any medically indicated tests should be conducted. 4. After completing directive (1), obtain an addendum opinion from a VA examiner, other than the October 2013 examiner, to determine the nature and etiology of the Veteran’s right knee condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiry: a. Is it at least as likely as not that the Veteran’s right knee condition was either incurred in, or otherwise related to, the Veteran’s active duty service? While making his determination, the examiner must consider the Veteran’s contentions of continuous problems with his knee since service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Wade, Associate Counsel