Citation Nr: 21004851 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 09-15 571A DATE: January 28, 2021 ORDER Service connection for a right shoulder disability is granted. Service connection for a lower back disability is granted. REMANDED Service connection for a respiratory disability is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran’s right shoulder disability is etiologically related to service. 2. Resolving all reasonable doubt in his favor, the Veteran’s lower back disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a lower back disability have been met. 38 U.S.C. §§ 1110, 1112, 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 February 2003 to June 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2007 rating decision issued by a regional office of the Department of Veterans Affairs (VA). In October 2020, the Veteran, through his attorney, withdrew his request for a Board hearing. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection may be established for certain chronic diseases, including arthritis, which manifest to a compensable degree within one year of separation from active service, provided the Veteran served continuously for 90 or more days. 38 C.F.R. §§ 3.307, 3.309. When a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. 1. Service connection for a right shoulder disability The Veteran attributes his left shoulder disability to repetitive stress and traumatic injuries, including from parachute jumps, during service. After careful review, the Board finds that service connection is warranted. Service treatment records reflect that the Veteran was treated for subacromial bursitis of the right shoulder in August 2005 following a ruck march. During a VA examination in May 2007, he reported ongoing shoulder pain, stiffness, aching, cramping, grinding and popping. The examiner determined, based on clinical testing and x-rays, that there was no pathology to render a diagnosis. Consequently, the examiner provided no opinion on the etiology of the Veteran’s reported symptoms. Subsequent medical records show continuing complaints of shoulder pain and grinding. The Veteran has submitted a September 2020 medical opinion from “Dr. F.A.,” a private chiropractor, in support of his claim. Dr. F.A. diagnosed the Veteran with chronic subacromial bursitis and noted early signs of arthritic development in the upper extremity. Citing information from the American Medical Association, Dr. F.A. explained that traumatic episodes in the upper extremities, like those reported by the Veteran, are four times as likely to result in progressive arthritis or other malignant pathology. Dr. F.A. concluded that the Veteran’s right shoulder disability is “clearly due to his in-service injuries.” The Board finds Dr. F.A.’s uncontradicted nexus opinion to be probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It provides a plausible explanation for the Veteran’s current disability, based on the available medical records, relevant medical literature, and the Veteran’s own competent, credible statements regarding the onset and progression of his symptoms. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that his right shoulder disability is etiologically related to service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is granted. 2. Service connection for a lower back disability The Veteran likewise attributes his lower back disability to repetitive stress and trauma during service. The Board finds that service connection is warranted. Service treatment records document no complaints of back pain or other relevant symptoms. During the May 2007 VA examination, the Veteran reported constant low back pain and stiffness. As with the right shoulder, the examiner determined there was no pathology identified on physical examination to render a diagnosis or an opinion on etiology. Subsequent medical records show continuing complaints of back pain. In September 2020, Dr. F.A. diagnosed the Veteran with degenerative disc disease, sciatic nerve impingement radiculopathy, and secondary hypertonicity/muscle spasms of the lumbar spine. Dr. F.A. noted that according to medical literature, localized injuries like those reported by the Veteran can result in traumatic arthritic development. He concluded that the reported in-service injuries precipitated the current lumbar spine disability. The Board finds Dr. F.A.’s uncontradicted nexus opinion to be probative. Nieves-Rodriguez, 22 Vet. App. at 304. Like the right shoulder opinion above, it provides a plausible explanation for the lumbar spine disability, based on the available medical records, medical literature, and competent, credible lay evidence from the Veteran. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that his lower back disability is etiologically related to service. Gilbert, 1 Vet. App. at 53. The appeal is granted. REASONS FOR REMAND 3. Service connection for a respiratory disability The Veteran contends he has had chronic bronchitis resulting in loss of lung capacity since service. Review of the claims file shows that he submitted a signed VA Form 21-4142 in May 2009, along with his substantive appeal to the Board (VA Form 9). This form identifies relevant medical records from a private facility in Holly Ridge, North Carolina, and authorizes their release to VA. There is no indication that the agency of original jurisdiction (AOJ) made any efforts to obtain these records, as required by 38 C.F.R. § 3.159(c)(1). Remand is necessary so that the AOJ can attempt to obtain them. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Make two requests for the authorized records identified on the Veteran’s VA Form 21-4142 dated May 13, 2009, unless it is clear after the first request that a second request would be futile. 2. Conduct any necessary additional development. 3. Readjudicate the Veteran’s claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his attorney the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.