Citation Nr: 20002222 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 13-08 209 DATE: January 10, 2020 ORDER Entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for gout is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral shoulder disability did not have its onset during service or within one year of service separation, and is not otherwise related to service. 2. The Veteran’s low back disability did not have its onset during service or within one year of service separation, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1971 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The Board remanded the appeal in March 2016 and December 2017. Service Connection Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). Certain chronic diseases (such as arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 U.S.C. § 1112(a); 38 C.F.R. §§ 3.307(a)(3); 3.309(a). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease has manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at that time, as distinguished from merely isolated findings. Id. 1. Entitlement to service connection for a bilateral shoulder disability is denied. 2. Entitlement to service connection for a low back disability is denied. The Veteran asserts that his bilateral shoulder and back disabilities are the result of a motor vehicle accident during his active duty service. See January 2014 VA Form 21-4138; April 2011 Notice of Disagreement (NOD); October 2015 Hearing Transcript at 10-11; 24. Specifically, the Veteran states that he was thrown from his jeep and hit his head on the windshield and landed on his right shoulder. See April 2011 NOD. He alleges he was unable to use his right shoulder and arm for at least one month. Id. With respect to the first element of service connection, the Veteran is currently diagnosed with arthritis of the shoulders and lumbar spine. See October 2014 VA treatment record; May 2011 and September 2014 VA x-ray studies. Thus, element one of service connection is met. Turning to the second element, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) contain no complaints, treatment for, or diagnoses or reports of a bilateral shoulder disability or a low back disability, nor is there any mention of a motor vehicle accident. The National Personnel Records Center (NPRC) found no line of duty determination relevant to the incident. See December 2009 NPRC response (VA 21-3101). The Veteran testified that he sought treatment after the motor vehicle accident at a private facility in Olsberg, Germany near Garrison Barracks. See October 2015 Board Hearing Transcript at 26. In the March 2016 and December 2017 remands, the Board directed the RO to attempt to locate any separately stored hospitalization records in this regard; however, these efforts were unsuccessful. In February 2018, the RO advised the Veteran of the action taken on the matter, and informed the Veteran that he could obtain and submit these records on his own. The Veteran has not furnished any evidence corroborating the accident other than his own lay statements. Moreover, the Board finds it significant that on separation examination in September 1973, the Veteran made no mention of any motor vehicle accident, back, or shoulder problems. Nor did the Veteran mention any back or shoulder issues in filing a claim for service connection for headaches for medical treatment in 1973. Finally, in March 2009, when the Veteran first sought treatment at a VA facility and reported back and shoulder pain, he specifically denied any injuries related to the same. The Board affords more probative value to this more contemporaneous evidence, showing a lack of any in-service back or shoulder injury, than the Veteran’s more recent statements to the contrary. Accordingly, element two of service connection is not met for either claim, and they fail on this basis alone. In any event, the Board notes in passing with regard to the final element, nexus, that there is no competent opinion of record relating the Veteran’s back and shoulder disabilities to service. In this regard, the Veteran is not competent to render a nexus opinion, as he does not possess the requisite expertise to determine the etiology of a degenerative process like arthritis. Moreover, arthritis first manifest in the shoulders and back decades after service, precluding presumptive service connection, and given the absence of any in-service back or shoulder complaints, service connection based on continuity of symptomatology is unavailable. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Entitlement to service connection for gout is remanded. The September 2019 VA examination report does not substantially comply with the Board’s December 2017 remand directives. Specifically, the examiner does not adequately address whether the Veteran’s gout is congenital in nature or the July 1973 STRs that document treatment for blisters and sores on the bottoms of the Veteran’s feet. Thus, based on lack of compliance with the prior remand directive, an addendum opinion from a new examiner is needed on remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Outstanding records should also be secured. This issue is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding records of private treatment, including all records from Quick Care. See the October 2015 Board Hearing Transcript at 13-14. 3. Then refer the VA claims file to a new examiner, preferably a physician, to address the etiology of the Veteran’s diagnosed gout. No examination in needed, unless the examiner determines otherwise. The examiner is requested to review the claims file in its entirety including any recently obtained treatment records. The examiner must respond to the following: a. Does the Veteran’s diagnosed gout constitute a congenital defect or disease? For VA purposes, a defect differs from a disease in that the former is “more or less stationary in nature” while the latter is “capable of improving or deteriorating.” Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). b. If the Veteran’s gout is considered a congenital defect, is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during active duty service? If the answer to the above question is “Yes,” please describe the resultant disability. c. If the gout is a congenital disease, did it clearly and unmistakably (undebatably) pre-exist the Veteran’s active duty military service? If so, was it clearly and unmistakably not permanently aggravated beyond its natural progress during service? d. If gout is a congenital disease that did not pre-exist service or if it is not of congenital origin, is it at least as likely as not (i.e., a 50 percent or greater probability) that it had its clinical onset in service or is otherwise related to service, to include documented foot problems therein? Please address the Veteran’s July 1973 treatment in service for blisters and sores on the bottoms of his feet. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.