Citation Nr: 20036718 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 19-00 497A DATE: May 28, 2020 ORDER Entitlement to service connection of a left shoulder condition is denied. Entitlement to service connection of a lumbosacral and thoracic sprain is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for a right shoulder rotator cuff tendonitis is remanded. Entitlement to service connection of tension headaches is remanded. FINDINGS OF FACT 1. The Veteran’s left shoulder rotator cuff tendonitis is less likely than not related to any incident of active service; it did not have onset within one year of separation from service and there is no evidence of continuity since active service. 2. The Veteran’s lumbar and thoracic sprain/strain is less likely than not related to any incident of active service; it did not have onset within one year of separation from service and there is no evidence of continuity since active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left shoulder rotator cuff tendonitis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for lumbar and thoracic sprain/strain are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to November 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the Veteran filed a VA Form 9 (Appeal to the Board of Veterans’ Appeals) in January 2019, perfecting an appeal of the claims now before the Board under the Legacy system of appeals. The RO initially rejected the Veteran’s formalized appeal as untimely, and the Veteran filed a request for Higher Level Review of that determination under the Modernized system of appeals, pursuant to the Appeals Modernization Act. The RO subsequently issued a decision letter in July 2019, finding that the VA Form 9 was, in fact, timely. This is a favorable finding of the RO and the Board will not disturb it. Because the Veteran’s VA Form 9 was timely, it perfected the original appeal under the Legacy system of appeals. The Veteran has not indicated his desire for the original appeal to be transferred to the Modernized system of appeals, and the Board will proceed with adjudicating the appeal under the Legacy system. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection of a left shoulder condition 2. Entitlement to service connection of a lumbosacral and thoracic sprain The Veteran seeks service connection of a left shoulder condition, lumbosacral and thoracic spine sprain, and tension headaches. The Board finds that the claims must be denied. As an initial matter, the Board acknowledges present diagnoses of left shoulder rotator cuff tendonitis, a lumbosacral and thoracic sprain, and tension headaches. Thus, the primary criterion of service connection is met for all three claims. Upon review of the Veteran’s service treatment records, the Board also notes the following in-service complaints and treatment: headaches in September 1983, August 1986, and June 1987; left shoulder pain in February 1986; and low back pain in April 1983. These qualify as an in-service incident, illness, or injury to which the present disabilities may be etiologically linked, and thus satisfy the second criterion of service connection. Therefore, the question before the Board is whether or not the Veteran’s presently diagnosed disabilities are etiologically linked to these noted in-service complaints. The Veteran was afforded a VA examination in June 2017 in connection with all of his claims. With regard to the Veteran’s shoulder, the examiner confirmed the present diagnosis of rotator cuff tendonitis. However, after careful review of all evidence in the record, the examiner opined that his left shoulder condition was less likely than not incurred in or caused by any incident of active service. In support of this conclusion, the examiner noted a single in-service complaint of left shoulder pain in February 1986 without any diagnosis given. There was no evidence of any further complaints of left shoulder pain, and no evidence of continuing complaints or treatment following separation from service. Concerning the low back claim, the examiner confirmed a diagnosis of lumbosacral strain and thoracic sprain. However, after review of the claims file, and in contemplation of the presently conducted examination, the examiner found the present diagnoses to be less likely than not related to any incident of active service. As a rationale, the examiner noted the complaint of low back pain in April 1983, with a diagnosis of muscle strain. However, the Veteran’s service treatment records are silent for any subsequent complaints of back pain or back injuries. There was no evidence of any treatment for back pain within a year of separation from active service. He denied any recurrent back pain on a Reserve physical examination in July 1982. The Board finds these opinions persuasive. They were rendered by a medical specialist in contemplation of a physical examination as well as the complete record, to include the Veteran’s own assertions as well as his medical treatment history, and also considered known medical principles. The Board has carefully reviewed the evidence of record, but finds no medical opinions which would contradict the VA examiner’s conclusions in this matter. In this regard, the Board acknowledges the Veteran’s various private treatment records which confirm present symptoms or diagnoses associated with the left shoulder and low back, but do not provide any evidence or opinions linking those issues to active service. The Board also acknowledges the Veteran’s own lay statements, arguing in favor of a link between his present left shoulder and low back disabilities and active service, but finds those statements of limited probative value in this matter. Specifically, the Veteran asserts that his left shoulder and low back disabilities are related to the hard physical labor he participated in during active service. The Board finds this lay opinion problematic for two reasons. First, the Veteran has not asserted that his conditions are associated with any specific incident of active service, but rather to service in general. The nature of military service presumes a significant degree of physicality, however, in order for service connection to be granted, there must be some specific incident, illness or injury during active service beyond the mere day-to-day physical activities of an active duty service member. Although the Veteran’s service treatment records do document a single complaint of left shoulder and low back pain, he has not made any specific arguments with regard to those recorded incidents. Further, while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his left shoulder and low back disabilities, especially in light of the VA examiner’s conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of either current disability in service, nor any evidence of continuity since separation from service. See id. Finally, to the extent that either disability may fall under the diagnostic umbrella of “arthritis,” the Board finds that there is no medical evidence that either disability manifested to a compensable degree within one year of separation from active service. Indeed, in a 1992 period examination for Reserve service he denied both low back and left shoulder pain. Neither is there any evidence in the record that either disability or the symptoms thereof had onset during active service with continuity to the present. For his part, the Veteran has not made any lay statements or inference that he has experienced either left shoulder or low back pain since active service. Therefore there is no lay evidence or testimony to consider in linking the present left shoulder rotator cuff tendonitis or low back sprain/strain to active service via a continuity of symptomatology. In sum, the Board finds that the evidence is against the claims of service connection for both left shoulder rotator cuff tendonitis and lumbar/thoracic sprain or strain. As such, the claims are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for a right shoulder rotator cuff tendonitis is remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s right shoulder disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), per the Veteran’s own assertions. The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Specifically, the examiner did not provide any answers regarding the right shoulder during flare ups. To the extent that left shoulder answers may also apply to the right, although the examiner found that specific ranges of motion during a flare up could not be given absent testing during such an incident, the examiner did not provide adequate evidence such as descriptions from the Veteran of how his right shoulder movement is affected during a period of flare. Therefore, a remand is necessary so that an adequate examination may be conducted.   3. Entitlement to service connection of tension headaches is remanded. Concerning the Veteran’s tension headache claim, the Veteran was afforded a VA examiantion in June 2017, and an opinion was rendered. Although that opinion found against a nexus between the Veteran’s present tension headaches and active service, the rationale noted a single in-service complaint of headaches. In fact, on review of the Veteran’s service treatment records, the evidence shows that the Veteran complained of headaches on multiple occasions between September 1983 and June 1987. Therefore the opinion is of limited value in adjudicating the claim as it relied on an incorrect interpretation of the evidence. As such, an addendum opinion should be obtained which addresses all in-service complaints of head pain. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of the claim. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, 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). Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tension headaches are at least as likely as not related to his in-service reports of headache pain. In providing the opinion, the examiner should consider the Veteran’s complete service treatment records which show various complaints of head pain between September 1983 and June 1987. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel