Citation Nr: 21003488 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-17 038 DATE: January 21, 2021 THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to a rating in excess of 10 percent for a right shoulder disability, prior to March 10, 2017. 3. Entitlement to a rating in excess of 30 percent for a right shoulder disability, from to March 10, 2017. ORDER Entitlement to service connection for a back disability is denied. Entitlement to a rating in excess of 30 percent for a right shoulder disability, from to March 10, 2017 is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for a right shoulder disability, prior to March 10, 2017, is remanded. FINDINGS OF FACT 1. A back disorder was not manifest during service and is unrelated to service. 2. The October 2018 Board decision assigned a disability rating of 30 percent from March 10, 2017 for a right shoulder disability. That determination was neither successfully appealed nor vacated and has become final. CONCLUSIONS OF LAW 1. A back disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 2. As the October 2018 Board decision, in regards to an increased disability rating in excess of 30 percent from March 10, 2017 for a right shoulder disability, was neither successfully appealed nor vacated, there remains no case or controversy as to that issue. 38 U.S.C. § 7104; 38 C.F.R. § 3.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps (USMC) from June 2003 to June 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction of this appeal is currently with the RO in St. Petersburg, Florida. In October 2018, the Board issued a decision denying entitlement to service connection for a back disability; and denying entitlement to a rating in excess of 10 percent for a right shoulder disability prior to March 10, 2017, and in excess of 30 percent thereafter. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion. In a January 2020 decision, the Board remanded these matters in order to obtain a new examination for the Veteran’s shoulder disability and a new medical opinion for the Veteran’s claimed back disability. In regards to the Veteran’s claimed back disability, the Board finds that there has been substantial compliance with its January 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). The issue of an increased rating for a shoulder disability is addressed in the REMAND section of this decision. 1. Entitlement to service connection for a back disability is denied. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, commonly referred to as direct service connection; or for aggravation of preexisting injury suffered or disease contracted in the line of duty, commonly referred to as a claim for aggravation. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). In this case, tinnitus, is listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a Veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has been diagnosed with intervertebral disc syndrome (IVDS) of the lumbar spine. The Veteran contends that his back disorder is the direct result of his active service. Specifically, the Veteran asserts through the April 2016 statement of a fellow servicemember that he injured his back while weightlifting in November 2007 on active duty. The statement indicates that the Veteran sought treatment and was informed that he had strained a muscle in his back, and that the Veteran experienced problems with his back for the remainder of his active service. Service treatment records document a normal spine and musculoskeletal system upon clinical evaluation at enlistment. At a July 2003 examination, the Veteran did not report any relevant symptoms or complaints. In a May 2004 treatment note, the Veteran specifically denies a back injury. In a January 2006 Pre-Deployment Health Assessment, the Veteran denied any relevant symptoms. In an August 2006 Post-Deployment Health Assessment, the Veteran specifically denied back pain, muscle aches or any relevant symptoms. In a March 2008 Report of Medical History upon separation, the Veteran again specifically denied back pain or any relevant back symptoms or disorders. At a January 2013 VA examination, the examiner opined that the Veteran’s diagnosed IVDS was less likely than not related to his active duty. The examiner considered the medical and lay evidence of record, to include service treatment records. In January 2020, the Board found, in accordance with the May 2019 Joint Motion, that the January 2013 VA medical opinion was inadequate to decide the claim. In that regard, the examiner failed to adequately consider the lay statements and contentions of the Veteran regarding the onset and continuity of his symptoms, nor did the examiner provide adequate supporting rationale for the conclusions reached. Moreover, the Board found that there was no opinion which addressed the April 2016 lay statement addressing an in-service back injury. Therefore, the Board remanded the matter for a new VA medical opinion addressing these contentions, in accordance with the May 2019 Joint Motion. The Veteran was afforded such an opinion in April 2020. After an in person examination and complete review of the claims folder, the examiner opined that the Veteran’s claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by his reported injury in service. The examiner noted that service treatment records were silent fo any back complaints, and that the Veteran had no document back disability upon exit examination. Furthermore, the examiner noted private treatment records from September 2010 in which the Veteran complained of “chronic LS pain since [January 2010], also fell snowboarding.” An October 2010 private treatment record noted “multiple back injuries” but did not record the date or nature of such injuries. The examiner went on to cite multiple back treatments and injuries, while also considering that the Veteran admitted “to trauma while in the Marines” in a September 2012 private treatment note. The examiner also considered the April 2016 buddy statement, in which a fellow service member described witnessing the Veteran’s back strain in service. While acknowledging the Veteran’s lay contentions that his symptoms began in service, the examiner noted that there were no medical records to support this assertion. The examiner also cited post-service injuries that were more likely the cause of his current back disability. Finally, the examiner offered the following: “If Veteran did have lumbar strain during [active duty] service per lay statements it would not have clinically progressed or caused degenerative arthritis of his lumbar spine with related IVDS and radiculopathy s/p surgery as strains are a muscular condition. It is plausible that an injury to the back/spine could occur during weightlifting as Veteran reported on his history, however, diagnostic evidence would be needed to confirm/support damage to the spine, which there is no evidence of diagnostic testing of Veteran’s back during [active duty] service.” In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the April 2020 VA examiner’s opinion that the Veteran’s back disorder is less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician’s opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). Additionally, in accordance with the January 2020 Board remand directives, the examiner specifically addressed the lay assertions that the Veteran suffered symptoms in and since service. Stegall, 11 Vet. App. 268 (1998). The Board has also considered the lay statements of record, to include the Veteran’s previously referenced assertions. With respect to the Veteran’s report that he injured his back in November 2007 while weightlifting, the Board finds his assertion as supported by a fellow servicemember to be competent and credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran reports he was diagnosed with a muscle strain while in service. However, he has not indicated that he was diagnosed with a chronic disorder by a medical professional during service or immediately thereafter, other than muscle strain. Id. The Veteran’s lay evidence of onset and continuity is far less probative than the opinion of the VA professional, as the VA medical opinion is far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the lay assertions are outweighed by the clinical evidence of record. Physical examinations during service do not reveal any relevant symptoms or complaints, and the Veteran specifically denied any relevant symptoms upon separation. This directly contradicts the Veteran’s assertion of continuity and instead suggests that any muscle strain that the Veteran experienced in November 2007 was acute and transitory. In other words, any injury that the Veteran experienced while weightlifting in approximately November 2007, or any other time in service, did not result in the manifestation of a chronic back disorder. The Board affords the medical evidence of record, to include in-service examinations, the Veteran’s specific denial of relevant symptoms upon separation and the April 2020 VA medical opinion, greater probative value than the post-service lay assertions of the Veteran and fellow servicemember. In sum, there is no reliable evidence linking the Veteran’s back disorder to service. The contemporaneous records establish that there were no documented manifestations of a chronic back disorder in service, the back was physically normal upon separation and the current disorder was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset, continuity and treatment. Furthermore, the evidence establishes that the remote onset of a back disorder is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 2. Entitlement to a rating in excess of 30 percent for a right shoulder disability, from to March 10, 2017 is dismissed. The Board notes that the issue of an increased disability rating in excess of 10 percent prior to March 10, 2017 was denied in the October 2018 Board decision. Although the January 2020 Board decision characterized the issue as both entitlement to an increased disability rating before and after March 10, 2017, this was erroneous. Specifically with regards to the right shoulder disability, the May 2019 Joint Motion only vacated the portion of the October 2018 Board decision that denied an increased disability rating in excess of 10 percent prior to March 10, 2017 and left undisturbed the portion of that decision which assigned a 30 percent disability rating thereafter for a right shoulder disability. The Veteran did not successfully appeal the portion of the October 2018 Board decision assigning a 30 percent disability rating from March 10, 2017 for a right shoulder disability rating, and despite the characterization in the January 2020 Board remand (itself not a final decision), the determination of the October 2018 Board decision to assign a disability rating of 30 percent prior to March 10, 2017 for a right shoulder disability is final and there is no current valid appeal as to that issue. Therefore, as the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed, there remains no allegation of error of fact or law for appellate consideration with respect to the Veteran's claim currently on appeal. 38 U.S.C. § 7104. Accordingly, the Board does not have jurisdiction to review the appeal, and it is hereby dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 3.104. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for a right shoulder disability, prior to March 10, 2017, is remanded. The Veteran was afforded a VA examination for his right shoulder disability in March 2013. Pursuant to the directives of the Joint Motion for Partial Remand, the October 2018 Board decision improperly relied on the March 2013 VA examination report insofar as the report failed to adequately address functional loss due to limitation of motion of the right shoulder during flare-ups or after repeated use as set forth in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001). In the January 2020 Board decision, the Board remanded the matter in order to obtain a new VA examination, however, the Board did not seek a retrospective opinion as to the Veteran’s degree of impairment in the period prior to March 10, 2017. As such, the Veteran was afforded a contemporaneous VA examination of his right shoulder disability in April 2020, but the examiner did not address the relevant period on appeal (i.e., prior to March 10, 2017). As such, the Board will request in this remand for a retrospective opinion to consider whether medical evidence in the claims file for this period affect or alter the previous 10 percent evaluation of the Veteran’s low back disability prior to March 10, 2017. See Chotta v. Peake, 22 Vet. App. 80, 84 (2008) (If a disability rating “cannot be awarded based on the available evidence,” VA must determine whether a medical opinion, including a retrospective opinion, “is necessary to make a decision on the claim.” Id. at 85; (emphasis in the original); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The matters are REMANDED for the following action: 1. Obtain any outstand and relevant VA and/or private treatment records. Should such exist, associate them with the claims file. 2. Return the claims file to the April 2020 examiner for the purposes of obtaining a retrospective addendum opinion as to the severity of the Veteran’s right shoulder disability for the period prior to March 10, 2017. The examiner is requested to review the VA examinations containing range of motion findings pertinent to the Veteran's right shoulder disability conducted during the period prior to March 10, 2017 on which the Veteran's right shoulder of motion was recorded. With regard to each examination, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. Additionally, the examiner is asked to opine as to the extent of the Veteran's functional loss (i) after repetition over time and, separately, (ii) during flare-ups. The examiner should also discuss the additional functional loss the Veteran experienced during flares and after repetition over time by utilizing information in the medical records or other sources available to the examiner such as the July 2012 and March 2013 VA examination report and VA treatment records from the period prior to March 10, 2017. To the examiner's best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. (Continued on next page.) 3. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board for further appellate review, if warranted. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.