Citation Nr: 1808621 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-08 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a thoracolumbar spine disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDING OF FACT The Veteran's left shoulder disability is not etiologically linked to any in service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1981 through December 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Board remanded the above-listed issues for further development. That development having been completed to the extent possible, the matters are again before the Board for appellate review. The issue of entitlement to service connection for a thoracolumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The July 2017 remand directives instructed the RO to identify the Veteran's current address and reschedule him for a videoconference hearing. In September 2017, the RO completed a search and identified an address for the Veteran. Notice that the Veteran had been scheduled for a videoconference hearing in November 2017 was mailed to that address in September 2017. There is no indication in the record that this notice was not received. In November 2017, the RO attempted to establish telephone communication with the Veteran to confirm his videoconference hearing. The RO could not reach the Veteran, but left him a detailed message, and sent an e-mail to the Veteran's representative requesting assistance with making telephone contact. The Veteran did not attend his November 2017 videoconference hearing. Accordingly, the Board is satisfied that VA has made reasonable efforts to fulfil the July 2017 remand directives by locating the Veteran's updated address, sending him appropriate notice, and requesting that his representative aid in establishing contact with the Veteran. As such, VA has substantially complied with the July 2017 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, 11 Vet. App. at 271. While VA has a duty to assist the Veteran in the development of his claim, that duty is not limitless, neither is it always a "one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Veteran has an obligation to keep VA apprised of his whereabouts, including his current address. See Jones v. West, 12 Vet. App. 98 (1998). If he does not, VA is not obligated to "turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Accordingly, the Board finds that VA has fulfilled its duty to assist in this regard and will proceed to adjudicate the Veteran's appeal. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to his claim for entitlement to service connection for a left shoulder disability. However, the Board finds that a VA examination is not necessary in order to render a decision. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). Here, as will be discussed below, although the Veteran reported left shoulder pain once while in service, and he has a current left shoulder disability, there is no indication that his current left shoulder disability is etiologically related to his isolated in-service report of shoulder pain. Accordingly, a VA opinion is not necessary with respect to this claim. Neither the Veteran nor his representative has raised any other issues with regard to VA's duty to notify and assist. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309) were initially provided in the January 2013 Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. The Veteran claims entitlement to service connection for a left shoulder disability. 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). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active duty for training. See 38 U.S.C.A. §§ 101(24), 106. Certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if they are established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board."). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records indicate that in April 1982, he reported a contusion on his left deltoid and underwent an x-ray. The x-ray report noted no fracture or other bony, joint, or soft tissue abnormalities. Service treatment records contain no other complaints of left shoulder pain or injury; he did not report any left shoulder disability on his October 1984 separation examination, or on his December 1990 National Guard enlistment examination. In May 1996, the Veteran was afforded a general VA medical examination in connection with other claims for compensation. The examiner noted he had full range of motion in all his joints. An x-ray report from May 1999 reflected no significant bone or joint abnormality. In March 2002, the Veteran reported experiencing bilateral shoulder pain, with pain worse at the end of the work day when reaching overhead; the physician noted he worked in manufacturing. An October 2008 x-ray of his left shoulder noted a subacomial spur, which could cause impingement, but his glenohumeral joint was well-maintained and the bony architecture appeared intact. In April 2009, the Veteran experiencing shoulder pain chronically for the last ten years. He reported no history of a major shoulder injury, but that he had injured it several times while playing sports. The physician noted there was evidence of progressive early arthritis seen on x-rays from 2009. A December 2009 VA treatment record noted the Veteran reported having injured his shoulder three times over the past seven years, most recently while playing basketball approximately three months prior. The physician reviewed a MRI report and noted the Veteran had frayed tendons and a ganglion cyst and some arthritic conditions. A March 2010 VA treatment record noted a MRI report from November was reviewed, and the Veteran appeared to have a frank rotator cuff tear and evidence of tendinopathy. In February 2011, a VA physician noted that the Veteran's left shoulder had signs and symptoms of subacromial impingement, and his MRI showed evidence of tendinitis, but no frank tear. In January 2012, the Veteran reported ongoing left shoulder pain, which was exacerbated with overhead movement. He denied any inciting event, or history of trauma, dislocation, or previous surgery of the shoulders. X-rays taken at the time noted degenerative changes. A MRI of his left shoulder in February 2012 reflected a tear of the anterior 1/3 of the supraspinatus tendon and a moderate partial tear and tendinopathy of the remainder of the supraspinatus tendon. The Veteran was not diagnosed with degenerative changes of the shoulder until at least April 2009. Therefore, the record does not reflect that the Veteran was diagnosed with arthritis to a compensable degree within one year of separation from active duty. There is also no evidence showing manifestations of arthritis during or within the first year after service. Thus, the presumptive service connection provision of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) for chronic disabilities are not applicable. VA treatment records do not indicate the Veteran has ever reported that his left shoulder pain began during active duty service. In April 2009, he reported his shoulder pain began 10 years prior, in approximately 1999, 15 years after separation from active duty. He additionally reported his shoulder pain was due to several small sports injuries. In December 2009, he reported that he had injured his shoulder three times, most recently while playing basketball. In his March 2013 substantive appeal, the Veteran argued that his in-service shoulder injury could not be seen on x-rays, and that he only reported shoulder pain once because he feared being accused of abusing sick leave. However, service treatment records note the Veteran was seen several times for reports of lower back pain over the course of 1982, suggesting he had no difficulty seeking treatment during active duty service. Moreover, it weighs against his assertions that in post-service treatment prior to his VA claim, he never reported a military injury nor reported continuity of symptoms back to service. While the Board recognizes the Veteran's assertions that his disability is related to service and is competent to testify as to events that occurred in military service, the Veteran is not competent to conclude that any condition he has now, over 30 years later, is connected to his service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, musculoskeletal issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Musculoskeletal issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible musculoskeletal issues, and a layperson is not competent to diagnose among them or to provide an etiology. Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish service connection for his disability. Indeed, the first evidence of left shoulder pain after service was not until 1999, approximately 15 years after the Veteran's in-service report of shoulder pain. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against the claim for service connection. See Maxon v. Gober 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, when the Veteran did seek treatment for his left shoulder disability, he consistently reported the pain began in approximately 1999 and was due to several small sports injuries. He never reported to physicians that his shoulder pain began while on active duty. In specific regard to the Veteran's disability, continuity of symptomatology under 38 C.F.R. § 3.303(b) is not shown, as there is no competent or credible lay or medical evidence of post-service symptomatology. There is no competent, credible medical or lay evidence linking the Veteran's current left rotator cuff tear and degenerative changes to his active duty service. The elements for service connection for a left shoulder disability have not been met. Accordingly, service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for a left shoulder disability is denied. REMAND The Veteran was afforded a VA examination to address the etiology of his thoracolumbar spine disability in April 2011. The examiner noted the Veteran complained of back pain in September 1982 and opined that it was less likely than not that the Veteran's current chronic muscle strain was etiologically related to the one in-service report of back pain. However, upon review of the claims file, it is evident the Veteran complained of back pain several times while in service. In May 1982 he complained of a sharp pain in his low back. He was diagnosed with a muscle strain in April 1982 and June 1982. Service treatment records dated August 1982 noted his back was tender to palpation and he was ordered not to lift anything over 20 pounds for two days. In September 1982, he complained of experiencing back pain for three months and was assessed to rule out muscle tension. Finally, on his October 1984 separation examination, he reported experiencing recurrent back pain. As the examiner's opinion appears to be based upon a factual inaccuracy, the opinion has little probative value. Unfortunately, there is no competent evidence of record that would provide a nexus between his current thoracolumbar spine disability and his active service. Although the Veteran attributes this condition to service, no medical professional has rendered an opinion on the cause of his current back condition. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from the VAMC Cleveland and all associated outpatient clinics from January 2012 to the present. 2. Schedule the Veteran for a VA examination for the purposes of determining the etiology of his current thoracolumbar spine disability. The examiner is asked to provide an opinion regarding if it is at least as likely as not (50 percent probability or greater) that the thoracolumbar spine disability is related to his military service. See above discussion regarding treatment during service. All opinions are to be accompanied by a detailed rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. The AOJ should then readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs