Citation Nr: 21064296 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-37 533 DATE: October 19, 2021 ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. The preponderance of evidence of record is against finding that the Veteran has had a left shoulder disorder at any time during or approximate to the pendency of the claim. 2. The preponderance of evidence of record is against finding that the Veteran has had a right shoulder disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2001 to March 2002. The matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left shoulder disorder 2. Entitlement to service connection for a right shoulder disorder The Veteran asserts that she has bilateral shoulder condition as a result of active-duty service. Specifically, she reported that she injured her upper and mid-level shoulders in bootcamp in September 2001. See July 2014 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). A September 2001 medical screening note shows that the Veteran injured her lower back from falling on a rock, the Veteran was diagnosed with upper back pain and received treatment. Injuries to the shoulders were not mentioned. In the June 2003 separation report of medical examination, the Veteran's upper extremities, and the spine was found to be normal. In a corresponding report of medical history, the Veteran specifically reported to not having had painful shoulder, elbow, or wrist, and no recurrent back pain or any back problem. The post-service treatment records do not indicate that the Veteran has ever complained of, was treated for, or was diagnosed with any shoulder condition or disorder post-service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. However, as the record does not reflect a current diagnosis of any shoulder condition or disorder, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the Veteran does not claim, nor do her medical records show that she experiences, any functional impairment due to her claimed bilateral shoulder conditions. As such, the Veteran's complaints of bilateral shoulder condition does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. In addition, the Veteran has not alleged manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). The Board acknowledges the statements of the Veteran as to the existence and etiology of her shoulder injury and acknowledges that the Veteran is competent to give evidence about what she experienced. For example, she is competent to discuss the fact that she experiences symptoms of shoulder pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report her current symptoms, as a lay person she does not have the education, training, experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). The Board notes that the Veteran served as a medical assistant or corpsman during service and that such statements may constitute competent medical evidence where the individual has specialized knowledge regarding the area of medicine or participated in treatment. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (finding that a nurse's statement may constitute competent medical evidence where the nurse has specialized knowledge regarding the area of medicine or participated in treatment). In the instant case, there is no suggestion that the Veteran has had any medical training beyond serving as a medical assistant or corpsman during service. The Veteran reported to being employed but did not specify a medical field as a current occupation. Hence, the Board finds that she is not competent to provide a medical opinion to support this claim on the basis of her assertions alone. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). Therefore, as the evidence of record shows that the Veteran does not have shoulder condition, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). The Board acknowledges that by denying the Veteran's claim for bilateral shoulder condition at this time, it is doing so without having afforded VA examinations to the Veteran. The Board determines that no VA examinations are required in this case. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). As already explained, there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability. The service treatment records are otherwise negative for complaints, treatments or diagnoses related to any shoulder condition, to include the Veteran's own account of an injury in September 2001. Further, the evidence does not indicate that the disorder may be related to her military service. See McLendon v. Nicholson, supra. In this regard, while the Veteran herself has advanced such a theory only by filing the instant claim for service connection, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide this claim. Accordingly, the Board finds that the preponderance of the evidence is against the claims and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded. The Veteran generally asserts that service connection for a cervical spine disorder is warranted. Service treatment records show one incident of a back injury in September 2001. During the June 2003 separation report of medical examination, the Veteran's back was found to be normal, and in a corresponding report of medical history, the Veteran specifically denied having had any back or recurrent back pain. Post-service, the Veteran was provided with a VA examination for the back in October 2019. The examiner opined that the Veteran did not currently have a diagnosis but also observed abnormal range of motion and pain. The examiner did not provide an opinion. Therefore, the Board finds that the October 2019 VA medical opinion is incomplete, and a remand is warranted to obtain an addendum VA opinion regarding the etiology and nature of the Veteran's claimed cervical spine disorder. Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA obtains an examination or opinion, the examination or opinion must be adequate). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed cervical spine disorder. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The opinion should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) Identify all of the Veteran's diagnosed cervical spine disorder, to include an upper back or neck condition. The examiner is directed to October 2019 VA examination where the Veteran's range of motion test showed abnormal range and pain that contribute to a functional loss. (B) For any diagnosed cervical spine disorder, is it at least as likely as not (50 percent probability or grater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof, to include the September 2001 incident where the Veteran injured her back? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.