Citation Nr: 1807534 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-05 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to service connection for lumbar spine disability. 3. Entitlement to service connection for left hip condition. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1999 to September 2003. The Board notes the appellant is a combat veteran and is the recipient of the Air Force Achievement Medal with Valor Device. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The issue of entitlement to service connection for left hip condition is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's right shoulder disability is etiologically related to service. 2. The Veteran's lumbar spine disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder disability have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, as well as certain assistance duties. However, given the disposition of the appeal below, discussion of VA's compliance with those duties are not necessary, and any deficiencies in such notice or assistance are harmless. In the decision below, the Board grants entitlement to service connection for right shoulder and lumbar spine disabilities. To the extent there are any notice defects as to the initial rating and effective date elements when effectuating the award, the Board trusts the RO will ensure they are rectified. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Shoulder The Veteran seeks entitlement to service connection for a right shoulder disability. Specifically, the Veteran asserts that during combat operations he fell down a ravine and suffered several injuries including a right shoulder dislocation. 1. Factual Background The service treatment records (STRs) include a July 1999 enlistment examination that noted normal upper extremities. Additionally, the Veteran denied any painful or "trick" shoulder, arthritis or swollen or painful joints. A July 2003 post-deployment health assessment shows the Veteran reported the following symptoms during his deployment: swollen, stiff or painful joints; back pain, muscle aches, and numbness or tingling in his hands or feet. The Veteran was referred for an orthopedic follow-up. An August 2003 report of medical history shows the Veteran reported right shoulder pain from an injury that occurred in July 2003 during his deployment to Iraq. In January 2004, the Veteran was awarded the Air Force Achievement Medal with Valor Device for distinguishing himself during combat operations. Post-service records include a September 2009 private medical record noting shoulder joint pain. An August 2010 private medical record shows the Veteran was initially seen for complaints of bilateral shoulder pain. The physician noted the Veteran's gait was off-center with his shoulders and upper torso leaning left and hips more right. The Veteran reported several service-related injuries during his deployment to Iraq, including a dislocated right shoulder. An X-ray study of the shoulders was noted as normal without fracture, dislocation or arthritis. However, an August 2010 MRI study of the right shoulder revealed acromioclavicular joint arthropathy, mild bursal surface fraying of the infraspinatus and supraspinatus tendon. The Veteran was diagnosed with supraspinatus and infraspinatus tendinopathy, inferior labral tear and osteoarthritis of the acromioclavicular joint. A September 2012 medical record noted a right shoulder dislocation in 2001 and the Veteran reported intermittent pain since that time. The Veteran was diagnosed with right shoulder joint pain and rotator cuff tendinitis. An April 2013 private medical record also shows the Veteran complained of right shoulder pain. The Veteran reported that his symptoms had been present since he injured his shoulder during his deployment to Iraq in 2003. He also reported his in-service injury as a dislocated shoulder. Following an examination the physician noted palpable tenderness over the bicipital groove. Increased pain was noted during ROM including during internal rotation. Weakness was noted on cross body adduction. Near impingement sign was mildly positive, and apprehension and lift-off tests were positive. Mild rotator cuff weakness was also noted with resisted ROM. An MRI study revealed a labral tear and the Veteran was diagnosed with tendinosis, mild fraying of the infraspinatus and supraspinatus tendons, and osteoarthritis of the acromioclavicular joint. At a November 2013 VA examination, the Veteran was diagnosed with right shoulder strain and instability. The examiner noted a left shoulder disability with 2003 as the date of onset. The examination report also shows the Veteran reported that the condition began in Iraq and the Veteran reported combat duty service. The examiner opined that the right shoulder disability was "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner based his opinion on medical records containing no clinical notes of right shoulder complaints or abnormal physical findings. The rationale also stated that the right shoulder condition was more likely secondary to an injury or over use following military service. At an April 2017 Board videoconference hearing, the Veteran testified that he was engaged in combat operations with insurgents at Kirkuk Airbase in June or July 2003 during which he fell down a ravine and injured his right shoulder. After which, the Veteran testified he received an Air Force Achievement Medal with Valor Device for his actions. The Veteran also testified that following this incident he received treatment from an Army medic as his unit was attached to the 173rd Airborne. He further stated that the Army medic helped put his shoulder back in place and that when he returned from his deployment in August 2003 he did not received any further treatment. He did stated that he reported injuring himself on his post-deployment medical report including reporting a sore back, muscles and numbness in his hands. Lastly, an April 2017 letter from the Veteran's treating chiropractor, Dr. DH, noted that the Veteran had been seen for injuries to his right shoulder. Dr. DH stated that the Veteran's claims file had been reviewed including imaging studies and official documents concerning injuries sustained during his deployment. Based on a review of the imaging studies, Dr. DH found an old dislocation injury consistent with the injury documented in the claims file. Based on a review of the evidence of record, Dr. HD opined that the current right shoulder condition was a result of the in-service injury. 2. Legal Analysis After a review of the evidence of record, the Board finds that service connection for right shoulder disability is warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C § 1110 (2012); Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically an August 2010 MRI study revealed right shoulder diagnoses for supraspinatus and infraspinatus tendinopathy, inferior labral tear and osteoarthritis of the acromioclavicular joint. Additionally, a November 2013 VA examiner diagnosed the Veteran with right shoulder strain and instability. Accordingly, the Veteran clearly has a current diagnoses and the remaining question is whether his right shoulder disability is otherwise related to service. Initially, the Board notes that the Appellant is a combat veteran. In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). In the case of a combat veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). In addition, the Veteran's STRs shows that he reported right shoulder pain from an injury that occurred in 2003 during his deployment to Iraq. Therefore, in consideration of the Veteran's status as a combat veteran as well as STRs demonstrating that right shoulder pain was reported during his deployment to Iraq, his in-service incident is conceded. To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. In this regard, the Board finds the April 2017 opinion from the Veteran's treating chiropractor the most probative evidence of record. Dr. DH noted that he reviewed the claims file including STRs related to the Veteran's complaints of a right shoulder injury. Dr. DH further stated that he reviewed the Veteran's imaging studies. Based on the evidence of record, Dr. DH opined that the current right shoulder disability was related to the conceded in-service injury. Conversely, the November 2013 VA examiner opined that the right shoulder disability was "less likely than not" related to an event in service. The examiner based his opinion of a finding that the record did not contain clinical notes of right shoulder complaints despite STRs as well as private medical records clearly showing complaints for a right shoulder injury sustained during his deployment in 2003. Further, the examiner concluded that the current right shoulder condition was "more likely secondary" to a post-service injury or over use. However, the examiner provided no evidence to support this finding. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Therefore, as the VA examiner clearly did not review the relevant STRs noting complaints for a right shoulder injury, and the examiner provided an unsupported rationale for his medical opinion, the Board finds the November 2013 VA examination of little probative value. As such, the Board finds that the weight of the competent evidence of record supports a finding that the Veteran's current right shoulder disability is etiologically related to service. The claim is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Lumbar Spine The Veteran seeks entitlement to service connection for a lumbar spine disability. Specifically, the Veteran asserts that a lumbar spine disability resulted from wear and tear during service and that the condition was aggravated during combat operations when he fell down a ravine and suffered several injuries including twisting his back. 1. Factual Background The STRs include a July 1999 enlistment examination that noted a normal spine. The examiner did note abnormal feet. Additionally, the Veteran denied any recurrent back pain, arthritis or swollen or painful joints. The clinician noted the Veteran had previously been seen by a chiropractor following a minor motor vehicle accident (MVA). The clinician further noted the Veteran saw a chiropractor for 4-5 months for tight muscles in his upper back that had fully resolved. In addition, the clinician noted no current back problems. A March 2003 pre-deployment health assessment shows the Veteran reported back problems. An X-ray study revealed a slight appearance of scoliosis and the Veteran was diagnosed with probable mild scoliosis. A July 2003 post-deployment health assessment shows the Veteran reported the following symptoms: swollen, stiff or painful joints; back pain; muscle aches; and numbness or tingling in his hands or feet. The Veteran was referred for an orthopedic follow-up. An August 2003 STR noted musculoskeletal symptoms including tenderness and laxity. The Veteran's back was also noted as tender with full ROM. Post-service medical records include a September 2009 private medical record noting a diagnosis for lumbago. An August 2010 private medical record shows the Veteran was initially seen for complaints of back pain. The physician noted the Veteran's gait was off-centered with shoulders and upper torso leaning left and hips more right. The Veteran reported several service-related injuries during his deployment to Iraq. No evidence of scoliosis was found. An X-ray study of the lumbar spine revealed no evidence of joint space narrowing, spurring or spondylolisthesis. In an April 2017 statement, the Veteran asserted that his current lumbar spine disability was secondary to his feet which were noted as abnormal on his entrance examination. He further asserted that his back condition began as a result of basic training, technical school and deployments to Iraq. In addition, the Veteran stated that his back had continued to bother him throughout his active duty service and had continued bothering him since service. In August 2013, the Veteran was diagnosed with chronic sprain/strain of the thoracic and lumbar region and the left sacroiliac joint. At a November 2013 VA examination, the Veteran was diagnosed with a lumbar strain with 2000 listed as the date of onset. The Veteran reported that his lumbar spine disability began gradually due to wear and tear with pain reported daily. The examiner opined that the lumbar spine disability was "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner based his medical opinion on the Veteran's enlistment examination that noted a MVA which "could explain his one-time complaint of back pain in 3/28/2003." At an April 2017 Board videoconference hearing, the Veteran testified that in June or July 2003 he was engaged in combat operations at Kirkuk Airbase during which he fell down a ravine and injured his back. After which, the Veteran testified he received an Air Force Achievement Medal with Valor Device for his actions. The Veteran also testified that following this incident he received treatment from an Army medic as his unit was attached to the 173rd Airborne. He further testified that he had a preexisting back injury that was exacerbated by the combat related in-service incident and that his back felt off-centered. Additionally, the Veteran testified that he was involved in a minor MVA in 1999 that did not result in any injury or treatment. The Veteran also testified that he was told he had scoliosis during service. Following service, the Veteran testified that he had received consistent treatment from a chiropractor since 2003. Lastly, in an April 2017 letter from the Veteran's treating chiropractor, Dr. DH noted the Veteran had been seen for injuries to his lumbar region. Dr. DH also noted that the Veteran's claims file had been reviewed including official documents concerning injuries sustained during his deployment as well as imaging studies. Further, Dr. DH noted that injuries to the lumbar spine were discussed during an initial treatment session in 2008 including a back injury due to carrying heavy packs during the Veteran's deployments which were further noted as documented in the STRs. Based on a review of the claims file, Dr. DH opined that the current chronic lumbar pain was consistent with the in-service reports and that the current condition was additionally a result of injuries sustained during Veteran's deployment to Iraq. 2. Legal Analysis After a review of the evidence of record, the Board finds that service connection for lumbar spine disability is warranted. Initially, the Board notes that the Veteran's enlistment examination noted a normal spine. While the enlistment examination also shows the Veteran reported being involved in a minor MVA prior to service, the clinician noted that the Veteran had received chiropractic treatment for an upper back disability, not a lower back disability. Additionally, no low back disability was reported or noted and the clinician specifically found no back problems. According, the Board finds that the evidence of record does not raise an issue whether the Veteran had a pre-existing lumbar spine disability prior to entry to service. Thus, the presumption of soundness attaches. See Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). In the present case, the Veteran has been diagnosed with chronic sprain/strain of the thoracic and lumbar region. Therefore, the remaining question is whether the diagnosed lumbar spine disability is related to service. As noted above, the appellant is a combat veteran and his in-service incident, notably a fall resulting in a twisted back, is conceded. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). Additionally, the STRs show the Veteran complained of back problems during service, including on a March 2003 pre-deployment health assessment and a July 2003 post-deployment health assessment. Regarding whether the Veteran's current lumbar spine disability is etiologically related to service, the Board finds the April 2017 letter from the Veteran's chiropractor, Dr. DH, the most probative evidence of record. Dr. DH noted that he reviewed the claims file including STRs related to the Veteran's complaints of a back disability. Dr. DH also noted that he had discussed with the Veteran his in-service injuries during an initial treatment session in 2008; including due to carrying heavy packs during the Veteran's deployments. Based on the evidence of record, Dr. DH opined that the current lumbar spine disability was a result of the injuries sustained during Veteran's deployment. The record also contains a November 2013 VA examination report which the Board finds inadequate to adjudicate the issue on appeal. Specifically, the Board notes that the VA examiner provided a negative etiological medical opinion based on the Veteran's enlistment examination that noted a MVA which he found "could explain" his one-time complaint of back pain in March 2003. Speculative language such as "could" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, the Board finds this opinion speculative in nature. The Board also notes that the examiner based his negative etiological opinion on a "one-time" complaint of back pain in March 2003 despite evidence showing reports of back pain that occurred in July and August 2003. Additionally, the examiner did not address the Veteran's reports of having suffered a back injury during combat operations. Thus, the Board finds that the November 2013 VA medical opinion is not supported by clinical findings in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). As such, the only competent evidence of record as to etiology is the April 2017 letter from the Veteran's chiropractor; thus, the Board finds that the weight of the competent evidence of record supports a finding that the Veteran's current lumbar spine disability is etiologically related to service. The claim is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for right shoulder disability is granted. Entitlement to service connection for lumbar spine disability is granted. REMAND Although further delay is regrettable, the Board finds that a VA examination is necessary to adjudicate the remaining claim on appeal. A review of the record shows that in September 2009 a private physician noted pain in the Veteran's pelvic region and thigh. An August 2010 private medical record shows the Veteran was initially seen for complaints of hip and back pain. The Veteran reported that his left hip had been hurting for the past year. The physician noted the Veteran's gait was off-centered with his shoulders and upper torso leaning left and hips more right. ROM of the hips was found somewhat limited without clicks or pain. An X-ray study of the bilateral hip was noted as normal without evidence of fracture, dislocation or degenerative changes. The Veteran was diagnosed with bilateral hip pain. In August 2013, the Veteran was diagnosed with chronic sprain/strain of the thoracic and lumbar region and the left SI joint. At a November 2013 VA examination, the Veteran was diagnosed with bilateral hip strain with 2000 noted as the date of onset. The Veteran reported a left hip condition due to wear and tear during service. The examiner opined that the left hip disability was "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner based his medical opinion on medical records containing no clinical notes of hip or thigh complaints or abnormal physical findings. The Board finds the November 2013 VA examination report inadequate as the examiner did not consider the Veteran's conceded combat related in-service incident. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, at an April 2017 Board videoconference hearing, the Veteran testified that his chiropractor treated both his left hip and lumbar spine conditions at the same time as the hip condition was part of his back condition. The Veteran further testified that he felt his hip condition was caused by nerve issues. Thus, the Board finds that a claim based on secondary service connection has been raised by the record. Additionally, in light of the grant of service connection for a lumbar spine disability, the Board finds that a VA examination is necessary to determine whether a left hip condition is secondary to the Veteran's now service-connected lumbar spine disability, including due to a neurological condition. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83 Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed left hip condition. The examiner should provide the following opinions: (a) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left hip is etiologically related to the Veteran's period of service, including the conceded combat related injury. (b) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left hip was caused or aggravated by the Veteran's service-connected lumbar spine disability, to include due to a neurological condition. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Then, readjudicate the claim remaining on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs