Citation Nr: 21067279 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-20 028 DATE: November 3, 2021 ORDER Service connection for a low back disability is granted. Service connection for a bilateral lower extremity neurological disability is granted. REMANDED Entitlement to service connection for a bilateral shoulder disability is remanded. FINDINGS OF FACT 1. The competent and probative evidence shows that the Veteran's low back disability is at least as likely as not related to his active service. 2. The competent and probative evidence shows that the Veteran's bilateral lower extremity neurological disability is at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for bilateral lower extremity neurological disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2009 to January 2010, and from January 2011 to April 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Veteran, through his authorized attorney representative requested that the record be held open for 30 days for additional evidence to be submitted. See 3/16/2021 Hearing Transcript, at page 2. The record showed that within 30 days, the Veteran's authorized attorney representative submitted additional evidence, to include updated medical records and medical articles to support his claim for service connection for a bilateral shoulder disability. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for a low back disability. 2. Service connection for a bilateral lower extremity neurological disability. The Veteran contends service connection for a low back disability and a bilateral lower extremity neurological disability. Specifically, regarding the low back disability, at the Board hearing, the Veteran testified that he developed back pain in-service. He further testified that when he is driving, he cannot remain seated for too long, he must stop, get out of the car, and walk around. Additionally, he testified that if he is standing for too long, he must sit down. Moreover, standing, sitting, and walking will trigger pain, at which point he must move to alleviate it. Regarding the bilateral lower extremity neurological disability, the Veteran testified that he experiences pain that goes down through his buttocks into the back of his leg, then it wraps under his knee and goes down the outside of his leg and into his left or right foot, and into his toes. See 3/16/2021 Hearing Transcript, at page 7. At the outset, the Board notes that diagnostic imaging test results showed degenerative disc and joint disease and chronic bilateral lumbar radiculopathy. See 5/6/2016 STR Medical Photocopy, at pages 8 and 9; see also 12/4/2015 CAPRI, at page 169; 6/4/2019 CAPRI, at page 242; 3/4/2021 Medical Treatment Record Non-Government Facility, at page 1. As such, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, service treatment records showed that the Veteran suffered an open wound head injury in-service. See 5/23/2016 STR, at pages 23 and 44. In addition, at the Board hearing, the Veteran testified that while he was stationed in Bagram in Afghanistan, he and another servicemember were building a shelf. When they were building the top shelf, he handed an 18-foot-long two-by-four to the other servicemember. After that, he looked down and grabbed the piece of wood and was bent crouched down looking at it to see if it was straight. Then, the other servicemember dropped that two-by-four and hit the Veteran in the back of the head. The Veteran further testified that he does not remember what happened next; however, his buddy, Todd O., was walking into the hangar as the accident happened and told the Veteran that after he got hit in the head, he stood up and stumbled and fell backwards over some two-by-fours. He further testified that after the accident he developed back pain, which has continued since service. See 3/16/2021 Hearing Transcript, at pages 4 to 7; see also 9/27/2017 NOD; 4/2/2018 Buddy / Lay Statement (from Todd O.); 4/2/2018 Correspondence. The Board finds the Veteran to be credible in describing his in-service incident as it is consistent with other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran's lay reports of symptoms). Thus, the second element of service connection is also met. The question before the Board therefore becomes whether there is a so-called "nexus" between the Veteran's low back disability and bilateral lower extremity neurological disability, and service. At the conclusion of the June 2019 VA fibromyalgia examination, the clinician opined that the Veteran's "low back [and] shooting pain down both legs fall under a diagnosable chronic multi-symptom illness with a partially explained etiology and were at least as likely as not incurred in service." Additionally, the examiner stated that "[t]he exposures, injuries[,] and type of activities the [V]eteran was required to perform while in service would most likely result in the type of conditions listed above." See 6/5/2019 C&P Examination, at page 4. Additionally, the Veteran submitted a private opinion by Dr. T.M., D.C., who opined that the current low back disability was either caused by the in-service accident or worsened by it. As rationale, Dr. T.M. explained that the Veteran's retrolisthesis can be hereditary; however, it is more commonly caused by injury. He then explained that an injury causes instability of the connecting soft tissues of the ligaments, discs, muscles, tendons, and fascia, which then causes an excessive load to be placed on one disc and causes damage. Finally, Dr. T.M. stated that the Veteran's lack of pain prior to the accident shows that the disability was worsened if it pre-existed or caused the disability if it did not pre-exist. See 9/27/2017 STR Medical Photocopy, at page 10. Furthermore, the record showed a private statement from Dr. K.W., M.D., who stated that the Veteran's symptoms have persisted since his in-service injury. As such, he opined that the injury never healed, and it is the cause for his current symptoms. See 3/4/2021 Medical Treatment Record Non-Government Facility, at page 4. The Board notes that in a March 2021 correspondence, the Veteran's authorized attorney representative listed two links to support the Veteran's claim for service connection for a low back disability. See 3/4/2021 Third Party Correspondence, at page 7. However, links are not probative evidence. Evidence is probative when it "tends to prove or disprove a point in issue." BLACK'S LAW DICTIONARY 579 (7th ed. 1999). In this regard, the Board does not know if it is complete, and links often lead to a "dead" website. Based on the above and resolving any reasonable doubt in favor of the Veteran, the Board finds credible the Veteran's testimony that his low back disability and bilateral lower extremity neurological disability began and have continued since service resulting in a chronic disability of arthritis. Based on this continuity of symptomatology for a chronic disease, service connection for a low back disability and bilateral lower extremity neurological disability are therefore warranted. 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). REASONS FOR REMAND Service connection for a bilateral shoulder disability. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent lay or medical evidence of (1) a current diagnosed disability or persistent or recurrent symptoms of disability; (2) evidence establishing that the veteran suffered an event, injury or disease in-service; and (3) an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and (4) insufficient competent medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, the threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran contends service connection for a bilateral shoulder disability. Specifically, at the Board hearing, the Veteran testified that the same injury that caused his low back and bilateral lower extremity neurological disability, also caused his bilateral shoulder disability. He also testified that in addition to the limited range of motion, during service, he felt tightness of the back part of his shoulders. He further testified that when it flares up, the pain comes from the back of his neck and goes down into his trapezius and then across and down through his hands. See 3/16/2021 Hearing Transcript, at pages 11 and 12. Post-service treatment records showed complaints of shoulder pain and radicular pain to the Veteran's upper extremities. See 1/20/2020 CAPRI, at pages 53 and 108; see also 4/19/2021 CAPRI, at pages 13 and 15. Additionally, a March 2021 discharge note from an emergency department stated as the discharge diagnosis that the Veteran's neck and left arm pain was due to a suspected pinched nerve. Further, the record showed that the Veteran's old disc extrusion is suspected to have begun to put pressure on a cervical nerve root. The note further stated that the final impression was cervical radiculopathy. See 3/31/2021 Medical Treatment Record Government Facility, at pages 6 and 11. Regarding the in-service incident, the Veteran testified that the same in-service injury, incurred in Afghanistan, discussed above, that caused the back disability, also caused his bilateral shoulder disability. See 3/13/2021 Hearing Transcript, at page 11. Additionally, the Veteran filed a medical article intitled "Corresponding scapular pain with the nerve root involved in cervical radiculopathy." See 3/31/2021 Correspondence. At the conclusion of the June 2019 fibromyalgia VA examination, the examiner stated that the Veteran's current disability of chronic joint pain on his shoulders and neck fall under an undiagnosed illness. Additionally, the examiner stated that "[t]he exposures, injuries[,] and type of activities the [V]eteran was required to perform while in service would most likely result in the type of conditions listed above." See 6/5/2019 C&P Examination, at page 3. As noted above, the Veteran has suggested that his bilateral shoulder disability and upper extremities radiculopathy disability started in-service. However, such disabilities remain undiagnosed. The Agency of Original Jurisdiction (AOJ) did not obtain a VA examination regarding whether the Veteran's bilateral shoulder disability and upper extremities radiculopathy disability are due to his in-service accident. However, based on the evidence of record, the Board finds that a VA musculoskeletal and neurological VA examination/medical opinion is required. On remand, the AOJ should take appropriate action to schedule a VA musculoskeletal and neurological examination. This matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding VA records from appropriate repositories. All records and/or responses received should be associated with the claims file. 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 the records. 2. After completion of step #1, schedule the Veteran for an examination or examinations (orthopedic and neurologic) by an appropriate clinician(s) to determine the nature and etiology of any current bilateral shoulder disability and upper extremities radiculopathy disability. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to identify any current bilateral shoulder disabilities. After review of the claims file, the examiner is to specifically address: (a.) Compile a list of all shoulder disabilities. (b.) For EACH shoulder disability identified on the current examination, state whether it is at least as likely as not (probability of approximately 50 percent or more), that any of the Veteran's current bilateral shoulder disability, in whole or part, had their onset in service. **In formulating the above opinion, the examiner is to consider the Veteran's competent lay statements that his current disability is the adverse effects which resulted due to the same in-service injury that caused the back disability, also caused his bilateral shoulder disability. See 3/13/2021 Hearing Transcript, at page 11. While he was stationed in Bagram in Afghanistan, he and another servicemember were building a shelf. When they were building the top shelf, he handed an 18-foot-long two-by-four to the other servicemember. After that, he looked down again and grabbed the piece of wood and was bent crouched down looking at it to see if it was straight. Then, other servicemember dropped that two-by-four and it the Veteran in the back of the head. The Veteran further testified that he does not remember what happened next; however, his buddy, Todd O. was walking into the hangar as the accident happened and told the Veteran that after he got hit in the head, he stood up and stumbled and fell backwards over some two-by-fours. He further testified that after the accident he developed back pain, which has continued since service. See 3/16/2021 Hearing Transcript, at pages 4 to 7; see also 9/27/2017 NOD; 4/2/2018 Buddy / Lay Statement; 4/2/2018 Correspondence. Additionally, the examiner must address the Veteran's contentions that in addition to the limited range of motion, during service, he felt tightness of the back part of his shoulders. He further testified that when it flares up, the pain comes from the back of his neck and goes down into his trapezius and then across and down through his hands. See 3/16/2021 Hearing Transcript, at pages 11 and 12. Furthermore, the examiner must address the article intitled "Corresponding scapular pain with the nerve root involved in cervical radiculopathy." See 3/31/2021 Correspondence.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.