Citation Nr: 19132182 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 18-13 129 DATE: April 24, 2019 ORDER Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbar spine disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to February 1998. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office. Now the matter is before the Board on appeal. The Veteran is seeking entitlement to service connection for a lumbar spine disability. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. First, the evidence on record shows that the Veteran has a current lumber spine disability. See September 2017 Back Conditions Disability Benefits Questionnaire (the examiner noted the Veteran’s diagnosis of lumbosacral strain). Thus, the first Shedden element for service connection is met. Next, the Board notes that the Veteran had complaints of low back pain and a diagnosis of lumbar strain during his active duty service. See November 1997 Service Treatment Record. Thus, the second Shedden element for service connection is also met. However, on September 2017 VA examination, the examiner opined that the Veteran’s claimed lumbar spine disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran’s in-service diagnosis of lumbar strain and physical therapy treatment in November 1997 and muscle strain of lumbar spine diagnosis in January 1998. The examiner noted that the Veteran reported the worsening of his back problems only in 2014 and his records does not show reported treatments until then. See also June 2017 VA Form 21-526EZ, Fully Developed Claim (Compensation) (the Veteran did not provide any treatment history for his lumbar spine disability). The examiner provided that medical literature supports that acute muscle strains are self-limited and resolve with treatment and physical therapy. The examiner also noted that the Veteran was able to continuously work after his separation and is still performing modified work. The Board finds the September 2017 examiner competent and credible and assigns high probative weight to her opinion as she provided supporting rationale based on medical literature and a review of the Veteran’s records in conjunction with an in-person examination of the Veteran. The Board acknowledges that the Veteran’s reported that his lumbar spine was injured and the injury is ongoing. See February 2018 VA Form 9. The Board finds the Veteran competent and credible to report in-service injury and continued symptoms. Nevertheless, the Board finds that his lay reports are simply outweighed by the opinion of the competent health care specialist discussed above. Thus, the Board finds that the third Shedden element for service connection is not met. Consequently, the Veteran’s entitlement to service connection for a lumbar spine disability is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS FOR REMAND The Veteran is also seeking entitlement to service connections for his left ankle and left shoulder conditions. However, the Board finds further development is necessary prior to final adjudication. The Board finds the Veteran competent and credible to report his left ankle and left shoulder injuries sustained in Fort Sill have not healed properly. See February 2018 VA Form 9. As the Veteran did not have VA examinations for his left ankle or his left shoulder, the Board finds that examinations by appropriate examiners to determine the nature and etiology of the Veteran’s left ankle and left shoulder conditions are necessary in order to make fully-informed decisions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matters are REMANDED for the following action: 1. First, the Agency of Original Jurisdiction (AOJ) should contact the Veteran to request his assistance in identifying and obtaining any outstanding VA or private treatment records relevant to his left ankle and left shoulder conditions. All records requests and responses received must be associated with the Veteran’s electronic claims file. 2. Then, the AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran’s left ankle condition. The examiner should review the Veteran’s claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner must opine whether the Veteran current left ankle condition is at least as likely as not (50 percent probability) related to an in-service injury, event, or disease, to include the claimed injury sustained in Fort Sill. (b.) The examiner must provide a complete written rationale for any opinion offered. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (c.) If the examiner cannot provide an opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. Next, the AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran’s left shoulder condition. The examiner should review the Veteran’s claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner must opine whether the Veteran current left shoulder condition is at least as likely as not (50 percent probability) related to an in-service injury, event, or disease, to include the claimed injury sustained in Fort Sill. (b.) The examiner must provide a complete written rationale for any opinion offered. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (c.) If the examiner cannot provide an opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 4. After the above and any other necessary development has been completed, the AOJ should readjudicate the issues on appeal. If the claim remains 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. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Kim, Associate Counsel