Citation Nr: 21001619 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-30 000 DATE: January 11, 2021 ORDER Entitlement to service connection for a low back condition, to include as secondary to service-connected knee conditions, is denied. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected major depressive disorder, is denied. FINDINGS OF FACT 1. The Veteran’s low back condition is not secondary to service-connected knee conditions, and is not otherwise related to an in-service injury or disease. 2. The Veteran’s left shoulder disability is not secondary to service-connected major depressive disorder, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back condition, to include as secondary to service-connected knee conditions have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for entitlement to service connection for a left shoulder disability, to include as secondary to service-connected major depressive disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from January 1998 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2018. This case was previously before the Board in April 2019, where it was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995). 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); 38 C.F.R. § 4.3. Entitlement to service connection for a low back condition, to include as secondary to service-connected knee conditions. The Veteran contends that he has incurred a low back condition secondary to his multiple service-connected knee conditions. The Veteran claims that he began experiencing low back pain in 2008. Medical records support this assertion, going back as far as February 2008 where he appears to have received treatment for a back strain. Later in December of 2008, the Veteran’s private physician submitted a memo claiming that the Veteran’s knee conditions were impacting his lumbar spine. He stated: “[the Veteran’s] arthralgia [of the knees] has also spread to his… back due to compensation and changes in gait/ambulation/posture and other daily activities… stemming from his original knee injury. [He] has decreased strength, range of motion, and crepitus… These conditions are directly linked to his military service and are chronic and progressive in nature.” However, the private physician’s claims did not include any rationale or evidence beyond the conclusory statements of service-connection, thus triggering the requirement of a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A. At no time during the course of the appeal have any of the examiners found evidence of any of the indicators that would be expected when experiencing compensatory changes due to a knee condition, including but not limited to, changes in gait, stance, muscle strength, instability, or assistive device usage. These indicators would be anticipated whether the knees were causing the back condition, or whether the knees were aggravating the back condition. The November 2019 examiner specifically noted that when the Veteran was seen in 2015 for his knee problems, there was no evidence found of instability, decreased strength, abnormal gait, or severe decrease in range of motion. The examiner further noted that by 2015, the Veteran had been complaining about knee pain for approximately seven years and explained that if his back pain was due to his knees, one would expect to see abnormal gait, braces, cane, guarding, instability, some assistive device, or compensatory changes in gait or stance at that point, and none of this was found on examination of his knees. The examiner also noted there was no evidence of the knees aggravating the back condition, for the same reasons. Specifically, she noted that the Veteran has slowly and gradually developed chronic back problems over the years, starting with complaints around 2008 and that there is no evidence of severe knee disease causing decreased muscle strength, discrepancy in range of motion between the right and left, instability, or chronic use of an assistive device that would place abnormal long-term chronic strain on the back. She added that if the Veteran’s knee conditions were so severe that they were contributing to back disease, one would expect to see numerous chronic doctor visits for severe knee disease and some compensatory changes in gait or stance, placing undue strain on the back. The examiner noted that in this case, there is no evidence of an orthopedist or physical therapist analyzing his gait or stance and showing un-natural strain on the back. Additionally, the examiner concluded that the Veteran’s testimony regarding the ATV accident post-service was likely to be irrelevant to this claim, explaining that there is an absence of medical treatment from the ATV accident, so it was likely not a major factor in any of his current medical conditions. Nonetheless, the examiner also noted that the Veteran did report this accident several times to medical providers in the course of seeking medical treatment, suggesting it was likely more significant that just stepping off the ATV as it slowly fell to the side as an incident this insignificant would be unlikely to reported by a patient seeking medical treatment. In light of the VA’s duty to consider the Veteran’s record sympathetically, VA also sought an opinion on direct service connection, specifically referencing an April 2004 in-service back injury. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, in September 2020, the examiner found that the Veteran’s April 2004 back injury could not be connected to his present low back disability because the Veteran himself has testified that his current back pain did not begin until approximately 2008. This is supported by a VA examination report from February of 2005 in which the Veteran reported various orthopedic issues but did not provide a history of back pain. Therefore, there is insufficient evidence to create a nexus between the in-service back injury and the present low back claim. Because of the lack of nexus in both direct and secondary theories of entitlement, service connection cannot be granted and the Veteran’s claim must be denied. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected major depressive disorder. The Veteran contends that he incurred a left shoulder condition secondary to his current service-connected major depressive disorder (MDD). Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Although the record contains a few discrepancies as to the exact circumstances of the incurring event, the basic depiction is that in September 2011, the Veteran was asleep at home and awoke with pain in his left shoulder. After going to the hospital, he was diagnosed with a dislocated left shoulder with fractures in two places. The Veteran presently experiences functional impairments due to that injury, including range of motion limitations, flare ups, and difficulty with lifting and overhead activities. The record contains some conflicting accounts of the injury, but considering the record in a light most sympathetic to the Veteran, the Board accepts the Veteran’s most recent description as offered at his November 2018 hearing, where he stated that he was napping in a recliner at home and awoke suddenly with pain in his arm. The Veteran’s argument is that his service-connected MDD caused him to have nightmares that caused the shoulder injury. The Veteran was granted service connection for MDD in February 2009. The disorder was specifically characterized as major depressive disorder, chronic, severe, without psychotic features with chronic pain disorder. Although the Veteran posits that violent dreams are part of his service-connected psychiatric disability, VA has found that the Veteran’s violent dreams cannot be reasonably connected to the his MDD. The November 2019 VA examiner stated that an injury occurring during violent dreams could only be secondarily service connected to a post-traumatic stress disorder (PTSD) disability, but not to major depressive disorder. The examiner stated in relevant part: “[I]t is at least as likely as not that shoulder injury [occurred] from violent sleep/nightmares associated with PTSD. If claimant is service connected for PTSD, then PTSD could cause nightmares and violent sleep. Depression is not known to cause violent sleep and nightmares. Therefore, shoulder would only be related if he is service connected for PTSD, not depression” (emphasis added). Although the Veteran’s record does indicate a history of PTSD, he is not service connected for it. His MDD diagnosis does include symptomology for sleep impairment, but not for violent dreams. Because entitlement to secondary service connection requires a nexus to the service-connected disability, the Veteran’s claim for entitlement of secondary service connection must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.