Citation Nr: 21064679 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-31 163 DATE: October 21, 2021 ORDER Entitlement to service connection for lumbar spine disability is granted. Entitlement to service connection for bilateral shoulder disability is granted. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran's currently diagnosed lumbar spine disability is due to his active duty service. 2. Resolving all doubt in his favor, the Veteran's currently diagnosed bilateral shoulder disability is due to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a bilateral shoulder disability are 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 on active duty from April 1979 to April 1982, from October 1988 to August 1989, and from December 1990 to May 1991, with additional service in the reserves. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to service connection for obstructive sleep apnea was previously before the Board in April 2021, when it was remanded for further development of the evidence. While the Veteran's appeal was in remand status, the RO granted his claim for entitlement to service connection for obstructive sleep apnea in a July 2021 rating decision. This action constitutes a full grant of the benefit sought on appeal with respect to that issue, and it is no longer before the Board. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, where a veteran served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Arthritis is on the list of chronic diseases which may be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.309(a). 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that his degenerative arthritis of the spine, claimed as a back disorder, is related to his active service. Specifically, the Veteran contends that his in-service duties as a medical specialist necessitated that he carry a ruck sack over 65 pounds, with an approximate additional 35 pounds of special medical equipment, and that he helped the wounded and aided in the removal of deceased soldiers, whom he would sometimes pick up over his shoulders, carry to stretchers, and then on the stretchers, would carry two or sometimes three bodies at a time. See June 2018 VA Form 9 and August 2019 Board Hearing Transcript. A review of the evidence of record shows that the Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis of any back disorder. The Veteran denied back pain throughout his active duty service and no back conditions were noted during in-service examinations. The Board notes there is no active duty separation examination of record, but that the Veteran also denied back pain and no back conditions were noted in connection with a March 1991 redeployment physical examination, which was two months prior to his separation from active duty. The Veteran was afforded VA back examinations in January 2016, January 2020, and April 2021. Associated opinions were given and additional opinions issued in February and June of 2021. In the previous decisions over the course of the appeal, the Board found the January 2016, January 2020, and February 2021 examinations and associated opinions not adequate for adjudicative purposes. In the April 2021 remand, the Board requested an addendum etiology opinion from a different examiner to consider in particular the Veteran's in-service duties as a combat medic, as described above. In June 2021, a different VA examiner opined that the Veteran's current back disability is less likely than not due to service, to include the nature of his in-service duties as a practical nurse and also as a litter-bearer. The examiner based his opinion on a lack of evidence supporting a nexus with service, and the Veteran's denial of back pain in his STRs. The Board finds that the June 2021 VA medical opinion is incomplete and conclusory, and thus has little probative value. While the examiner noted the Veteran's in-service duties as discussed above and therefore presumably considered these circumstances as directed in the remand, the opinion did not actually discuss or explain the medical reasoning behind why these activities are not related to the Veteran's current back disability. Additionally, the examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." The Board notes that the February 2021 VA examiner stated that the Veteran's age, weight, and/or post-military occupational history, including as a nurse for 17 years, predisposed the Veteran to develop his current back disability. The examiner also stated that the Veteran's back disability is a chronic condition that tends to progressively worsen over time with age and/or due to repetitive trauma. During the August 2019 Board hearing, the Veteran asserted that his current back disability is due his to the heavy lifting of deceased bodies, carrying them to a stretcher where the bodies were placed two and three at a time, and then carrying them to another location. He testified that he sought treatment at that time, but it was primarily pain killers, and that after separation, he initially tried to go to the VA medical center, but there was a problem that caused him to arrive late and they gave him a no show. The Veteran further testified that this did not sit well with him, so he did not seek treatment immediately afterward, and that being a combat medic, he treated himself with over-the-counter medication until around 2011 or 2012 when he began to receive treatment through the VA facility. The record shows that the Veteran reported that his unit picked up thousands of corpses and that he aided with wounded soldiers and carrying dead bodies for pick up. See September 2018 Statement and June 2018 VA Form 9. And, in September 2021 correspondence, the Veteran reported that his unit was sent to open a road and remove thousands of bodies so that an infantry unit could move through "Death Valley," so called because of the dozens of thousands of dead Iraqi soldiers. He reported that his unit removed over 14,000 soldiers in less than two weeks. The Board notes this does not include the wounded and injured soldiers attended to during this time. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience, but has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Board acknowledges not only that the Veteran is competent to report his symptoms and history, but also that he also has medical training and, as such, the Board gives the Veteran's statements more weight than those of a lay person. The Veteran's statements are consistent with the circumstances of his service. His service records show that his principal duties included being a medical specialist, ambulance attendant, and ambulance driver. See DD Form - 214 and Record of Assignments. Further, the Board places great probative weight on the Veteran's reports of his duties as a medical specialist, including the repetitive motions of bending or stooping down, picking up and carrying a corpse, including over his shoulder, as well as carrying stretchers with two or three bodies at a time, as "repetitive trauma," particularly considering the volume of corpses the Veteran reported, and his reports of working more than 14 hours a day. See December 2020 Statement and August 2019 Hearing Testimony. Similarly, the Board places probative value on the Veteran's in-service occupational history as a medical specialist, particularly as the Veteran reported that his post-service occupation was the same as his military occupational specialty. See November 2014 VA Form 21-8940. The Board finds that the negative and positive evidence discussed above is at least in equipoise. Therefore, affording the Veteran the benefit of the doubt, the Board finds that service connection for a back disability is warranted and the claim is granted. 2. Entitlement to service connection for a bilateral shoulder disability The Veteran contends that his current bilateral shoulder disability is related to his active service. His assertion is based on the same contentions discussed above regarding his back disorder. At the outset, the Board notes that a diagnosis of bilateral AC joint osteoarthritis is of record. See June 2021 VA Medical Opinion. The Veteran's STRs are silent for complaints, treatment, or diagnosis of any shoulder disorder. The Veteran denied shoulder issues throughout his active duty service and no shoulder conditions were noted during in-service examinations. The Board notes there is no active duty separation examination of record, but that the Veteran also denied any shoulder conditions and no shoulder conditions were noted in connection with a March 1991 redeployment physical examination, which was two months prior to his separation from active duty. The Veteran was afforded a VA shoulder examination in February 2021, including an associated opinion and an additional opinion in June of 2021. In April 2021, the Board found the February 2021 examination and opinion not adequate for adjudicative purposes. In the April 2021 remand, the Board requested an addendum etiology opinion from a different examiner to consider in particular the Veteran's in-service duties as a combat medic, as described above. In June 2021, the VA examiner opined that the Veteran's current shoulder disability is less likely than not due to service, to include the nature of his in-service duties as a practical nurse and also as a litter-bearer. The examiner based his opinion on a lack of evidence supporting a nexus with service, and the Veteran's denial of back pain in his STRs. The Board finds that the June 2021 VA medical opinion is incomplete and conclusory, and has little probative value. Similar to the June 2021 back opinion discussed above, while the examiner noted the Veteran's in-service duties as a medical specialist and therefore presumably considered these circumstances as directed in the remand, the opinion failed to discuss or explain the medical reasoning behind why these activities are not related to the Veteran's current bilateral shoulder disability. Additionally, the examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." During the August 2019 Board hearing, the Veteran contended that his current shoulder disability is due his to the heavy lifting of deceased bodies, carrying them to a stretcher where the bodies were placed two and three at a time, and then carrying them to another location. He testified that he sought treatment at that time, but it was primarily pain killers, and that after separation, he initially tried to go to the VA medical center, but there was a problem that cause him to arrive late and they gave him a no show. The Veteran further testified that this did not sit well with him, so he did not seek treatment immediately after that, and that being a combat medic, he treated himself with over-the-counter medication until around 2011 or 2012 when he began to receive treatment through the VA facility. The Board notes the Veteran's contentions discussed in connection with his back claim of helping his unit remove over 14,000 soldiers in less than two weeks, are the same he makes in connection with his shoulder claim. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience, but has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). As discussed above, the Board acknowledges not only that the Veteran is competent to report his symptoms and history, but also that he also has medical training, and, as such, the Board gives his statements more weight than those of a lay person. The Board gives more weight to the Veteran's reports of duties as a combat medic and his in-service occupational history as a medical specialist, as well as his reports of an in-service shoulder injury which continues to the present, particularly in light of his medical training. The Board finds that the negative and positive evidence discussed above is at least in equipoise. Therefore, affording the Veteran the benefit of the doubt, the Board finds that service connection for a bilateral shoulder disability is warranted and the claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.