Citation Nr: 18160991 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 08-20 428 DATE: December 28, 2018 ORDER Entitlement to service connection for left-shoulder tendonitis, to include as secondary to service-connected chronic lumbosacral strain, is denied. REMANDED Entitlement to a compensable disability rating for right-tibial stress fracture, involving the right ankle, is remanded. FINDING OF FACT The objective medical evidence shows that left-shoulder tendonitis is not proximately due to, the result of, or aggravated by the Veteran’s service-connected lumbosacral strain, nor was it directly caused by an event, injury, or illness during active service. CONCLUSION OF LAW The criteria for service connection for left-shoulder tendonitis, to include as secondary to service-connected lumbosacral strain, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1989 to February 1998, with additional service with the Army National Guard with periods of active duty for training and inactive duty training from February 1998 until April 2007. In July 2016, the Veteran testified at a videoconference Board hearing. A transcript of that hearing is of record. 1. Entitlement to service connection for left-shoulder tendonitis, to include as secondary to service-connected chronic lumbosacral strain. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran’s treatment record provides no medical evidence of the Veteran’s left-shoulder tendonitis being proximately due to or the result of his service-connected lumbosacral strain. The Veteran’s active duty treatment records are absent complaints, findings or diagnoses of any left shoulder injury or disorder during service. On the Report of Medical History completed by the Veteran in June 1991, he denied having painful or “trick” shoulder. On National Guard examination in November 1998, nine months after the Veteran’s discharge from active service, his upper extremities were evaluated as normal. On the Report of Medical History completed by the Veteran in November 1998 in conjunction with his physical, he denied ever having swollen or painful joints and painful or “trick” shoulder. Private treatment records indicate in January 2003 that the Veteran reported a four-week history of left subscapular pain. At the time of onset, it was noted that the Veteran stated only that he had a stiff neck, but subsequently developed, in addition to the left subscapular pain, pain radiating down the left arm and numbness in the fourth and fifth digits of the left hand. Subsequently, the pain became more generalized throughout the left arm and seemed to be most severe at his elbow. He states that two years prior, at Christmas, he was awakened with left neck and left arm pain, but that after a couple of weeks of conservative management, it went away. His symptoms in January 2003 had not cleared and in fact had worsened after a four-week period despite appropriate conservative management. After physical examination and MRI of the cervical spine which showed mild ridging with disc bulging at C5-6 to the left, the Veteran was diagnosed as having C5-6 displaced [sic], cervical spondylosis, and cervical radiculopathy. On National Guard examination in February 2005, the Veteran’s upper extremities were evaluated as normal. On the Report of Medical History in February 2005, the Veteran denied swollen or painful joints and painful shoulder. Army National Guard medical records indicate that the Veteran presented in December 2006 with a three-week history of left shoulder pain, localized along anterolateral aspect of biceps and noted as being associated with weight-lifting activity. The Veteran described his pain as a pinching pain with a warm sensation localized without radiation 6 out of 10 in severity. The Veteran denied any numbness or tingling, but reported some weakness due to pain. The Veteran reported waking up with pain, that pain increased with range of motion, and that pain decreased with rotating arm. Physical examination revealed no ecchymosis, edema, erythema, or obvious deformity. The Veteran demonstrated full active range of motion and 4/5 strength during forward flexion and internal rotation compared to the right shoulder (5/5). He was assessed with was tendonitis supraspinatus. A consultation sheet notes a three-week history of left shoulder pain with forward flexion against resistance, 4/5 strength and a history of C5-6 and C6-7 anterior discectomy and fusion secondary to bulging disc in 2005. Regarding subsequent periods of the Veteran’s military service, service connection may be granted for disability resulting from disease or injury incurred during active duty for training (ACDUTRA), or injuries suffered during inactive duty training (INACDUTRA), to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C. §§ 101(24), 106. Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist’s or Guardsman’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This is usually twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. In this case, the Army National Guard Retirements Points History Statement prepared in July 2007 notes that between April 2006 and April 2007, the Veteran had no periods of active duty for training or inactive duty training periods. In July 2007, the Veteran underwent a VA examination. Following physical examination and x-rays, the Veteran was diagnosed with left-shoulder tendonitis (impacted by left cervical radiculopathy). The July 2007 examiner opined that the left shoulder condition was less likely than not related to chronic lumbosacral strain due to lack of proximity of joint involved. X-ray of the left shoulder demonstrated no radiographic signs of recent or remote fracture or dislocation and no significant arthritic changes. Subacromial space was within normal limits. An MRI of the left shoulder in December 2007 showed small full thickness tear of rotator cuff at the insertion of the supraspinatus tendon on the greater tuberosity and questionable small SLAP tear. In January 2008, the Veteran underwent a surgical repair of the rotator cuff. The Veteran underwent a VA examination in December 2010, in which he was diagnosed as having radiculopathy/tendonitis. After review of the claims file and physical examination of the Veteran, the examiner opined that the Veteran’s left shoulder disorder was less likely as not caused by or a result of the in-service diagnosis of lumbar spine in-service event. The examiner also opined that the Veteran’s left shoulder pain was most likely related to the Veteran’s rotator cuff tear and supraspinous rupture and that the symptoms were also less likely related to cervical spine condition as the symptoms persisted after the cervical spine discectomy. The examiner further opined that there was no nexus between the lumbar spine and the shoulder radiculopathy/tendonitis. Although the December 2010 VA examiner noted that the Veteran’s left shoulder pain were more likely related to rotator cuff tear and supraspinous rupture and less likely related to cervical spine condition, the examiner did not specifically indicate whether or not any of the service-connected disabilities aggravated the Veteran’s left shoulder disorder. July and August 2014 private treatment examinations showed left and right-shoulder range of motion maneuvers at normal ranges and at full strength. August 2014 private treatment notes for the Veteran cervical disorder state all extremities exhibit a full range of active motion, with no evidence of shoulder effusions, crepitations, malalignment, instability, or subluxations In July 2016, based on the failure of the December 2010 VA examination to address aggravation and that the July 2007 VA examiner had diagnosed the Veteran as having left shoulder tendonitis “impacted” by left cervical radiculopathy, thereby implying some relationship to symptoms and effects beyond the shoulder disorder itself, the Board remanded the claim for a new VA examination. In April 2017, the Veteran underwent a VA examination for shoulder and arm conditions, in which the VA examiner diagnosed the Veteran with rotator cuff tendonitis. Additionally, she restated he January 2008 diagnosis of “Arthroscopy [Left] Shoulder [with] Labral Debridement & Subtotal Synovectomy, Open Subacromial Decompression and Rotator Cuff Repair.” Examination and testing indicated a current disability. She noted that imaging studies had not documented arthritis. The April 2017 VA examiner opined that the Veteran’s left-shoulder tendonitis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In her rationale, she explained: No evidence of left shoulder condition was found in service treatment records. MRI of left shoulder in 2007 and Surgery occurred after service on 1/23/2008. There is no evidence to suggest that the left shoulder condition of rotator cuff tendonitis and residuals of left shoulder surgery is directly due to service. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She further opined that left-shoulder tendonitis is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. In her rationale, she explained: There is no evidence to suggest that the cervical spine [degenerative disc disease] could have caused the left shoulder rotator cuff tear requiring surgery. The condition is likely related to previous injury or wear and tear over time. There is no evidence to suggest that the Veteran’s lumbosacral strain could have caused the left shoulder rotator cuff tear requiring surgery. The condition is likely related to previous injury or wear and tear over time. The claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition. Between May and November 2017, the Veteran’s VA pain assessments noted left-shoulder chronic pain variously at 4, 5 and 6-7 out of 10 in severity. In September 2018 VA treatment notes, the Veteran reported left-shoulder pain and range of motion testing showed only “50 [percent with] pain present.” As already stated, nothing in the foregoing summary of the treatment record indicates that left-shoulder tendonitis is proximately due to or the result of the Veteran’s service-connected lumbosacral spine strain. For example, besides STRs containing no complaints, treatment or diagnoses for shoulder-related pain or injuries, the July 2007 VA examiner, although diagnosing the Veteran with left-shoulder tendonitis, explained her negative opinion by observing that there was no proximity of the lumbosacral spine strain to the left-shoulder joint and, consequently, the effects of the former disorder would not be related to the latter. Significantly, although the July 2007 VA examiner had diagnosed left-shoulder tendonitis as being “impacted” by left-cervical radiculopathy, both the December 2010 and April 2017 VA examiners explained in part their opinions by stating the record offers no evidence to indicate that the cervical spine disorder affects the left-shoulder disorder, as well as no causal relationship between the lumbar and shoulder disorders. The Board has reviewed and carefully considered the Veteran’s testimony at the July 2016 Board hearing; his July 2007 Statement in Support of Claim; the statement accompanying his February 2008 NOD; his February 2011 Statement in Support of Claim; and his October 2015 Statement in Support of Claim, as well as his reports to treatment providers, as they have appeared throughout the record. These have helped the Board in understanding better the nature and development of the Veteran’s disorder and how it has affected him. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to diagnose an orthopedic and possibly neurological disorder or interpret accurately clinical findings pertaining to it, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the medical evidence when there are contradictory findings or statements inconsistent with the record and it must rely on clinical findings and opinions to establish the connection of current disabilities to service-related events, injuries or illnesses or determine their current level of severity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons stated and based on the objective medical evidence, the Board finds left-shoulder tendonitis is not proximately due to, the result of, or aggravated the Veteran’s service-connected lumbosacral strain, nor was it directly caused by an event, injury, or illness during active service. Consequently, service connection, secondary or otherwise, has not been established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for right-tibial stress fracture, involving the right ankle. The record contains an Examination Scheduling Request for right-tibial stress fracture, involving the right ankle. Although there has been a Clarification Response to the request also associated with the file, there is as yet no examination report on file, suggesting that no examination has taken place. Until this development is completed, it is premature for the Board to review and consider the record as it now stands and adjudicate. Additionally, VA records have been associated with the claims file since the AOJ’s last adjudication in September 2018. Those records contain some findings pertaining to the current nature and severity of Veteran’s right-tibial stress fracture made on dates indicating the possibility of the Veteran being unaware of them, as well as not having reviewed them. A remand is therefore necessary to afford the Veteran the initial review by the AOJ of all the above new evidence and for it then accordingly to adjudicate. The matter is REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for right-tibial stress fracture, involving the right ankle, at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. If not already accomplished, complete the development indicated in the record, specifically to include the arranging for, scheduling and the conducting of a VA examination for right-tibial stress fracture, involving the right ankle. In that examination, the examiner should be requested by the AOJ to make findings to include those pertinent to right-ankle movement and function pertaining to the right-tibial stress fracture, as well as all findings of the current nature, severity and extent of the disorder. 3. After completing the above development and any other indicated development, inform the Veteran and his representative of the new evidence associated with the claims file since the AOJ’s September 2018 adjudication, then adjudicate the claim in light of the VA examination   for right-tibial stress fracture, involving the right ankle, and all the evidence of record, including the evidence submitted or acquired since the last adjudication. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel