Citation Nr: 21070165 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-49 841 DATE: November 23, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for a right hip disorder is denied. Entitlement to service connection for a right shoulder disorder is granted. Entitlement to service connection for a left shoulder disorder is denied. FINDINGS OF FACT 1. The competent, probative evidence of record does not relate a lumbar spine disorder to service. 2. The competent, probative evidence of record does not relate a left hip disorder to service or a service-connected disability. 3. The competent, probative evidence of record does not relate a right hip disorder to service or a service-connected disability. 4. Resolving all reasonable doubt in the Veteran's favor, a right shoulder disability is etiologically related to her service. 5. The competent, probative evidence of record does not relate to a left shoulder disorder to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. 2. The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310, 3.317. 3. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310, 3.317. 4. The criteria for service connection for a right shoulder disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.317. 5. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2000 to May 2000, from October 2003 to February 2004, and from March 2004 to July 2004. In July 2019, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. In January 2020 and February 2021, the Board previously remanded this appeal for additional actions. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include arthritis, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal as the preponderance of the evidence weighs against a finding of a relationship between the Veteran's claimed disorders and any service-connected disability. Finally, to the extent the Veteran is seeking entitlement to service connection pursuant to the provisions of 38 C.F.R. § 3.317, as discussed below, the Veteran has received diagnoses of the lumbar spine, right and left hips, and right and left shoulders with defined etiology. See July 2015 VA Gulf War Conditions Disability Benefits Questionnaire (DBQ). As such, the provisions of 38 C.F.R. § 3.317 regarding undiagnosed illness are not applicable and further discussion is not warranted. In deciding a claim for service connection, all theories of entitlement must be considered. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Low back disorder The Veteran is seeking entitlement to service connection for a lumbar spine disorder that she believes is due to her military service. The Veteran states that her back disorders is the result of a fall down the ramp of a C-130 when carrying the back end of a stretcher. Alternatively, she believes it is due to having to routinely lift 75 pounds from the floor to above her head. See July 2019 Board Hearing Transcript. The question for the Board is whether the Veteran's claimed disorder began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a lumbosacral strain (see October 2020 VA Examination), the preponderance of the evidence weighs against finding that the claimed disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d). At this juncture, the Board notes the record does not reflect a diagnosis of arthritis of the lumbar spine. Therefore, she is not entitled to consideration of service connection under the provisions of 38 U.S.C. § 3.309. As to whether the Veteran sought treatment for the claimed disorder during service, the Board notes the Veteran's service treatment records do not show any complaints of low back pain, or a diagnosis of a low back disorder due to disease or injury during service. Following service, the VA treatment records associated with the claims file do not include any notations of treatment for a diagnosed back disorder. In fact, the Veteran only reported complaints of back pain beginning in November 2010. See November 2010 VA Treatment Record. More importantly, these records also do not contain any etiological opinions attributing the claimed disorder to the Veteran's military service. A private July 2019 Back Conditions Disability Benefits Questionnaire (DBQ) notes a diagnosis of mechanical back pain syndrome. The private physician then stated that it was as likely as not that the condition was caused by or aggravated by her service. See July 2019 Back Conditions DBQ. No further rationale was provided. Consequently, as noted in the January 2020 Board remand, this opinion is afforded little probative value. An October 2020 VA Back Conditions DBQ notes a diagnosis of lumbosacral strain. The accompanying medical opinion determined it was less likely than not that the currently diagnosed condition was due to the Veteran's military service due to the lack of in-service treatment or diagnosis. As the Board previously noted in the February 2021 Board remand, however, the VA examiner did not comment on the findings of the July 2019 private DBQ that provided a positive, albeit conclusory, opinion. Further, the rationale for the examiner's unfavorable finding was impermissibly based on the lack of in-service treatment and/ or diagnosis. Thus, this opinion is also found to be of little probative value. The Veteran was most recently examined by VA in April 2021. At that time, the VA examiner again concluded that it was less likely than not that the currently diagnosed back disorder is due to her service due to the lack of in-service injury, and the fact that back pain was not reported until 2010, more than 10 years since her last period of active duty. The examiner stated that, even finding her reports of credible, the lack of complaints or treatment for 10 years since service cannot establish a nexus. Moreover, the July 2019 private physician's statement was based on only the Veteran's statements and not corroborated by the evidence in the claims file. See April 2021 VA Medical Opinion. Similarly, a May 2021 VA addendum opinion noted that a back strain as well as all other soft tissue strain are transitory, self-limiting, and occur in the general medical population. The examiner stated that without medical evidence to suggest back issues during service, it is less likely than not the Veteran's diagnosed lumbosacral strain was not incurred in or caused by service. There are no other adequate etiological opinions of record. The Board has also reviewed the Veteran's statements submitted in support of her claim during the pendency of this appeal and made during her July 2019 Board hearing, that her low back disorder is related to an in-service injury, event, or disease; however, she is not competent to provide a nexus opinion in this case, as the issue of causation in this case require knowledge and interpretation of complicated diagnostic medical testing which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, such as the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, while the Veteran has met the first prong of service connection, which is the requirement of a current disability, her claim fails as she has not met the second and third elements, which are in-service incurrence and nexus. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). As such, the claim must be denied. 2. Right and left hip disorders The Veteran is seeking entitlement to service connection for right and left hip disorders that she believes is due to her military service. The Veteran states that her bilateral hip disorders are the result of walking everywhere while in the service and on concrete while on the flight line. See July 2019 Board Hearing Transcript. Alternatively, the Veteran has alleged that her bilateral hip disorders are due to or aggravated by her lumbar spine disorder. As an initial matter, the Board notes that service connection on a secondary basis to the lumbar spine is not warranted as the Veteran has not established her entitlement to service connection for the claimed lumbar spine disorder. Therefore, the Board will proceed with other applicable theories of entitlement. For the reasons discussed below, the Board concludes that, while the Veteran does have current diagnoses of bilateral pain syndrome and hip strains, which satisfies the first element of service connection (see July 2019 Private Hip Conditions DBQ, and October 2020 VA Hip Conditions DBQ) the evidence is against a finding that these disorders are either directly attributable to her military service or the result of/aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. §§ 3.303(a), 3.310. As a point of clarification, the private July 2019 Hip Conditions DBQ noted a diagnosis of bilateral osteoarthritis of the hip. However, the physician also noted that x-rays had not been conducted to confirm the presence of arthritis. Moreover, October 2020 radiographic findings do not support a diagnosis of arthritis. Therefore, she is not entitled to consideration of service connection under the provisions of 38 U.S.C. § 3.309 for the bilateral hip disorder. Therefore, the only remaining theory of entitlement is direct service connection. Here, as to the second element of service connection, the Veteran's service treatment records are completely silent regarding complaints of, treatment for, or a diagnosis for the claimed disorder, right and left hip disorders. Post-service VA treatment records also do not contain any complaints or treatment pertaining to the hips, or opinions regarding the etiology of the now diagnosed right and left hip disorders. In a July 2015 VA Hip Conditions DBQ noted the diagnoses of bilateral hip strains, but no etiological opinion was provided. The Veteran then provided a private hip conditions DBQ, dated in July 2019. The private physician then stated that it was as likely as not that the right and left hip conditions were caused by or aggravated by her service. See July 2019 Hip Conditions DBQ. No further rationale was provided. Consequently, as noted in the January 2020 Board remand, this opinion is afforded little probative value. An October 2020 VA Hip Conditions DBQ notes a diagnosis of bilateral hip strain. The accompanying medical opinion determined it was less likely than not that the currently diagnosed condition was due to the Veteran's military service due to the lack of in-service treatment or diagnosis. As the Board previously noted in the February 2021 Board remand, however, the VA examiner did not comment on the findings of the July 2019 private DBQ that provided a positive, albeit conclusory, opinion. Further, the examiner's unfavorable rationale was impermissibly based on the lack of in-service treatment and/ or diagnosis. Thus, this opinion is also found to be of little probative value. The Veteran was most recently examined by VA in April 2021. At that time, the VA examiner again concluded it was less likely than not that the currently diagnosed bilateral hip strain disorders are due to her service due to the lack of in-service injury, and the fact that hip pain was not reported until 2010, more than 10 years since her last period of active duty. The examiner stated that, even finding her reports of credible, the lack of complaints or treatment for 10 years since service cannot establish a nexus. Moreover, the July 2019 private physician's statement was based on only on the Veteran's statements and not corroborated by the evidence in the claims file. See April 2021 VA Medical Opinion. Similarly, VA obtained an addendum opinion dated in May 2021. However, this addendum opinion was concerning only the theory of secondary service connection, which, as noted, is not for further consideration. There are no other adequate etiological opinions of record. The Board has also reviewed the Veteran's statements submitted in support of her claim during the pendency of this appeal and made during her July 2019 Board hearing. While the Veteran may believe she has a bilateral hip disorder that is related to an in-service injury, event, or disease, she is not competent to provide a nexus opinion in this case, as the issue of causation in this case require knowledge and interpretation of complicated diagnostic medical testing which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, such as the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, while the Veteran has met the first prong of service connection, which is the requirement of a current disability, her claim fails as she has not met the second and third elements, which are in-service incurrence and nexus. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). As such, the claim must be denied. 3. Right shoulder disorder The Veteran is seeking service connection for a right shoulder disorder that she believes is due to her military service. The Veteran states that she sustained injuries to her shoulders when she fell down the ramp of a C-130 when carrying the back end of stretcher. See July 2019 Board Hearing Transcript. She also states she sustained an injury when she tripped over a communications cord while unloading medical equipment. See October 2010 Statement. The Board concludes that the Veteran has currently diagnosed right shoulder strain and degenerative changes of the acromioclavicular (AC) joint (see July 2015 and October 2020 VA Shoulder Conditions DBQs and October 2020 VA X-rays). 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). During service, it was noted the Veteran sustained an injury to her right shoulder while on duty in April 2001. See 137th Airlift Wing Ground Mishaps (FY 2001). Following service, the Veteran first sought treatment in June 2001 regarding her right shoulder. As an initial matter, the Board notes that the Veteran is not entitled to service connection for arthritis of the right shoulder on a presumptive basis as the evidence does not suggest that the disorder manifested during service, or that she was diagnosed with arthritis of the right shoulder within one year of service separation. Here, arthritis of the left shoulder was first diagnosed in 2020. See again October 2020 VA X-rays. The Board notes there are no adequate etiological opinions of record. First, the July 2015 VA examiner did not provide an opinion as to the etiology of the diagnosed right shoulder disorder. Next, the July 2019 private physician only provided diagnoses regarding the left shoulder and did not provide any comment on the right shoulder. Thereafter, an October 2020 VA Shoulder Conditions DBQ found that it was less likely than not the right shoulder disorder is due to service as the 2001 in-service incident was found to be acute. The examiner noted the degenerative changes found on current x-rays but stated there was no chronicity of care in the claims file. However, the examiner did not state whether the currently diagnosed disorders are the type that may be sustained as a result of the 2001 in-service injury. Most recently, an April 2021 VA opinion stated that, while the Veteran's report of symptomatology are deemed credible, there is no documented evidence to support the assertion that current right shoulder disorder is related to or caused by the in-service injury. The Board finds that this opinion is also inadequate as the examiner did not consider the Veteran's report of continuity of the right shoulder symptomatology. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current right shoulder disorder is due to her military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right shoulder disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Left shoulder disorder The Veteran is seeking entitlement to service connection for a left shoulder disorder that she believes is due to her military service. The Veteran states that she sustained injuries to her shoulders when she fell down the ramp of a C-130 when carrying the back end of stretcher. See July 2019 Board Hearing Transcript. She also states she sustained an injury when she tripped over a communications cord while unloading medical equipment. See October 2010 Statement. The question for the Board is whether the Veteran's claimed disorder began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of left shoulder rotator cuff tendonitis, rotator cuff tear, and osteoarthritis (see July 2015 VA Shoulder Conditions DBQ), the preponderance of the evidence weighs against finding that the claimed disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d). As an initial matter, the Board notes that the Veteran is not entitled to service connection for arthritis of the left shoulder on a presumptive basis as the evidence does not suggest that the disorder manifested during service, or that she was diagnosed with arthritis of the left shoulder within one year of service separation. Here, arthritis of the left shoulder was first diagnosed in 2015. See again July 2015 VA Shoulder Conditions DBQ. As to whether the Veteran sought treatment for the claimed disorder during service, the Board notes the Veteran's service treatment records show do not show any complaints of a left shoulder disorder, or a diagnosis of a left shoulder disorder due to disease or injury during service. Following service, the VA treatment records associated with the claims file do not include any notations of treatment for a diagnosed left shoulder disorder until the July 2015 VA Shoulder Conditions DBQ. More importantly, these records also do not contain any etiological opinions attributing the claimed disorder to the Veteran's military service. A July 2015 VA Shoulder Conditions DBQ noted the diagnoses of left shoulder arthritis, but no etiological opinion was provided. The Veteran then provided a private shoulder conditions DBQ, dated in July 2019. The private physician then stated that it was as likely as not that the left shoulder disorders of rotator cuff tendonitis and tear were caused by or aggravated by her service and, specifically, her fall. See July 2019 Shoulder Conditions DBQ. No further rationale was provided. Consequently, as noted in the January 2020 Board remand, this opinion is afforded little probative value. An October 2020 VA Shoulder Conditions opinion notes the examiner's opinion determined it was less likely than not that the currently diagnosed condition was due to the Veteran's military service due to the lack of in-service treatment or diagnosis. As the Board previously noted in the February 2021 Board remand, however, the VA examiner did not comment on the findings of the July 2019 private DBQ that provided a positive, albeit conclusory, opinion. Further, the examiner's unfavorable rationale was impermissibly based on the lack of in-service treatment and/ or diagnosis. Thus, this opinion is also found to be of little probative value. The Veteran was most recently examined by VA in April 2021. At that time, the VA examiner again concluded it was less likely than not that the currently diagnosed left shoulder disorders are due to her service due to the lack of in-service injury, and the fact that a left hip disorder was noted until 2015, creating a gap of 14 years since the reported injury. The examiner stated that, even finding her reports credible, the lack of complaints or treatment for 15 years since service cannot establish a nexus. Moreover, the July 2019 private physician's statement was based on only on the Veteran's statements and not corroborated by the evidence in the claims file. See April 2021 VA Medical Opinion. The Board has also reviewed the Veteran's statements submitted in support of her claim during the pendency of this appeal and made during her July 2019 Board hearing. While the Veteran may believe she has a left shoulder disorder that is related to an in-service injury, event, or disease, she is not competent to provide a nexus opinion in this case, as the issue of causation in this case require knowledge and interpretation of complicated diagnostic medical testing which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses, such as the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finally, the Board has considered continuity of symptomatology for arthritis of the left shoulder. However, here, as stated previously, the available post-service treatment records did not show any complaints of or treatment for the claimed disorder until 2015. See again July 2015 VA Shoulder Conditions DBQ. As such, there has been no evidence of a chronic disease since service. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In sum, while the Veteran has met the first prong of service connection, which is the requirement of a current disability, her claim fails as she has not met the second and third elements, which are in-service incurrence and nexus. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). As such, the claim must be denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.