Citation Nr: 21000403 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-49 471 DATE: January 5, 2021 ORDER Entitlement to service connection for bilateral rotator cuff tears is granted. Entitlement to service connection for lumbosacral strain, cervical strain, and degenerative arthritis of the spine (low back disability) is granted. FINDINGS OF FACT 1. No rotator cuff defect was noted at entry into service and the evidence is at least evenly balanced as to whether the Veteran’s bilateral rotator cuff tears are related to service. 2. The evidence is at least evenly balanced as to whether the Veteran’s low back disability is related to service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral rotator cuff tears are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from September 1968 to February 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Regional Office (RO) which, in part, denied the Veteran’s claim for service connection for lumbar sacral strain and for bilateral shoulder cuff condition. The Veteran filed a Notice of Disagreement (NOD) in October 2016 and a Statement of the Case (SOC) was issued by the RO in September 2017, continuing the denials of service connection for a bilateral shoulder disability and a low back disability. The Veteran perfected his appeal to the Board in September 2017, requesting a hearing before a Veterans Law Judge. A hearing was held in December 2020, before the undersigned, but a transcript is not necessary because the benefits sought are being granted in full. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b).  Entitlement for service connection for low back disability. The Board finds, for the following reasons, that the Veteran was diagnosed with a low back disability and that the evidence is at least evenly balanced as to whether this disability is due to an in-service injury.  A January 2016 examination report, including X-ray imaging, reflects diagnoses of lumbosacral strain, cervical strain, and degenerative arthritis of the spine. Therefore, a current disability has been demonstrated. During his January 2016 examination, the Veteran reported that he had been experiencing pain and discomfort in his lower back since his job as a machinist repairman in the Navy, which required a lot of heavy lifting. The Veteran’s service treatment records (STRs) from 1976 through 1983 document numerous reports of complaints and treatment for back pain. Thus, the in-service injury element of service connection has been met. Thus, the remaining question is whether a nexus exists between the Veteran’s current low back disability and his in-service back injury. In support of a nexus, the Veteran stated at his January 2016 VA examination, that during his time in service, the naval machine shop did not use cranes, so he and his fellow servicemen had to load and unload heavy objects by hand, which caused pain in his back. In his November 2015 Statement in Support of Claim the Veteran asserted that he has experienced problems with his back ever since he retired and that his symptoms were becoming increasingly worse over time. Personnel records confirm that the Veteran worked as a machine repairman in the naval machine shop during his time in service from 1970 through 1982. As there is nothing in the record to contradict the Veteran, lay statements regarding the chronicity of his back symptoms, are competent and credible to support his claim. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report observations). Accordingly, the Board finds that the Veteran’s assertions of continuous symptoms beginning in service are probative to show a nexus. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board has the responsibility to assess the credibility and weight to be given to evidence). Evidence against the claim includes a January 2016 VA examination report, where the examiner opined the Veteran’s back pain was less likely than not caused by an in-service injury, event, or illness. The examiner’s rationale was that military medical records showed no history of back pain and that the Veteran’s complaints of back pain came years after he was discharged from the military. However, this is factually inaccurate as STRs indicate the Veteran was treated for complaints of back pain in June 1976, February 1977, and November 1982. The record also contains numerous treatment reports reflecting the Veteran’s complaints and treatment for lower back pain since his discharge from service. Therefore, the examiner’s opinion is inadequate and entitled to no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Given the competent and credible lay statements as to the Veteran’s continuous back symptoms since service, and the inadequate negative nexus opinion based on an inaccurate factual premise, the evidence is at least evenly balanced as to whether the Veteran’s lower back disability is related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a lower back disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for bilateral shoulder cuff tears. A June 2017 VA treatment examination report indicates that the Veteran was diagnosed with bilateral rotator cuff tears and a glenohumeral joint dislocation (bilateral shoulder disability). Thus, a current disability has been demonstrated. Service treatment records (STRs) in 1971, 1979 and 1984 note the Veteran’s complaints of shoulder pain and shoulder arthralgia during service. Therefore, the in-service injury element is met. Thus, the remaining question is whether a nexus exists between the Veteran’s bilateral shoulder disability and his in-service shoulder injury. The March 1968 preinduction examination report reflects that the Veteran’s upper extremities were normal. The summary of defects and diagnoses section of this report reflects dislocation of both shoulders. Thus, the Veteran is not presumed sound as to dislocation of the shoulders but is presumed sound as to rotator cuff tears as the latter were noted on the entrance examination report. Clear and unmistakable evidence of preexisting shoulder cuff tears and lack of aggravation is required to rebut the presumption of soundness as to the tears. While there is evidence of preexisting dislocated shoulders there is no evidence of preexisting rotator cuff tears. Consequently, the Veteran is presumed to have been in sound condition with regard to his bilateral rotator cuff tears, when he entered service. In support of a nexus, the Veteran stated in his October 2016 NOD, that his current shoulder disability is due to the repetitive lifting, pushing, and pulling of heavy objects, during the eighteen years he worked in the naval machine shop. He stated that he has had shoulder pain ever since he retired from service. In a November 2015 Statement in Support of Claim the Veteran indicated that his work in the naval machine shop was tough on his back and shoulders. He stated there were a lot of objects that needed lifting off machinery, and they were unable to use cranes. He has had surgery on his right and left rotator cuffs since leaving service, and stated he has had problems with his shoulders since leaving the Navy. As there is nothing in the record to contradict the Veteran, lay statements regarding the chronicity of his back symptoms, are competent and credible to support his claim. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report observations). Accordingly, the Board finds that the Veteran’s assertions of continuous symptoms beginning in service are probative to show a nexus. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board has the responsibility to assess the credibility and weight to be given to evidence). Evidence against the claim includes a June 2017 VA examination report. In that report, the VA examiner noted that the Veteran had a history of surgery for bilateral dislocated shoulders prior to entering service. However, he concluded that the Veteran’s current rotator cuff disability was separate and distinct from his previous bilateral dislocated shoulder condition, for which he had surgery in 1965 on the left shoulder and on the right shoulder in 1967, prior to entering service. This conclusion was also supported by an October 2016 letter submitted by the Veteran’s private physician, which stated that his 1968 bilateral shoulder surgery was not a result of or in any way related to his symptoms of his current rotator cuff pathology. The examiner went on to conclude that it was less likely than not the Veteran’s bilateral rotator cuff tears were incurred in or caused by his time in service. She reasoned that there were no joint complaints and no exam abnormalities noted upon the Veteran’s discharge from service. This opinion is inadequate and of little probative value as the examiner did not take into account the Veteran’s lay statements, in providing this negative opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Given the competent and credible lay statements as to the Veteran’s continuity of symptomatology of his bilateral shoulder rotator cuff disability during and since service, the inadequate negative nexus opinion, and the probative medical opinion reflecting a lack of relationship between the dislocated shoulders that preexisted service and the current rotator cuff tears, the evidence is at least evenly balanced as to whether the Veteran’s bilateral rotator cuff tears are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral rotator cuff tears is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, 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.