Citation Nr: 21070328 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-17 956 DATE: November 23, 2021 ORDER Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran's low back disorder did not manifest during service or to a compensable degree within one year of discharge from active service, and is not otherwise attributable to service. 2. The Veteran's left shoulder disorder did not manifest during service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from April 1964 to April 1968. This matter come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This matter was recently remanded in October 2020 for additional development. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that the Veteran's degenerative arthritis of the spine qualifies as a "chronic condition" under 38 C.F.R. § 3.309 (a). As such, an alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left shoulder disorder. The Veteran contends that his low back and left shoulder disorders are due to his military service. His claim for compensation was received by VA in March 2018. There is competent evidence of the presence of current low back and left shoulder disorders. May 2018 VA examination reports include diagnoses of degenerative arthritis of the spine and left shoulder impingement syndrome. In addition, the Veteran testified at his Board hearing that he injured his low back and left shoulder while conducting maintenance on an aircraft's tail hook, which required him to lift and hold the tail hook, while another service member placed a pin in the tail hook assembly in order to lock it in place. As such, the two Shedden criteria are met and without dispute. The remaining issue, therefore, is whether there is a causal connection between the low back and left shoulder disorders and military service. The Board finds a preponderance of the evidence to be against the Veteran. Therefore, his claims for service connection must be denied. A review of the service treatment records (STRs) note complaints of low back and left shoulder pain in May 1964. However, there were no subsequent complaints or treatment for low back or left shoulder issues. Clinical examination was normal on enlistment and discharge. The record contains no medical evidence dated between April 1968 and April 1969 - within the first year of discharge from service - indicating any diagnosis or treatment for low back issues. The first complaint of low back issues is dated in December 2013 and many years after discharge. Therefore, presumptive service connection for the low back is not warranted. The Veteran underwent VA examinations in May 2018. Regarding the low back claim, he was diagnosed with degenerative arthritis of the spine. The examiner noted the Veteran's reports of in-service back pain due to "lifting aircraft cables," but that the low back pain did not become noticeable until the "1970s." Furthermore, he reported experiencing non-radiating back pain. Regarding the left shoulder claim, the Veteran was diagnosed with left shoulder impingement syndrome. The examiner noted the Veteran's reports of in-service left shoulder pain, but that he became aware of decreased ability to raise his left shoulder above the shoulder level approximately three to four years ago. In addition, the examiner noted that the Veteran had not sought treatment or been evaluated for his left shoulder disorder. The examiner then gave negative opinions that the low back and left shoulder disorders were the result of military service. The examiner noted that the Veteran had only one in-service complaint for low back and left shoulder issues, with a negative separation examination. In addition, the examiner noted that the Veteran was able to work until retirement in 2007 without any treatment for his low back and left shoulder. This led the examiner to conclude that the low back and left shoulder disorders were degenerative in nature and related more to aging, not to the single in-service complaint. No other opinions or rationale were provided. VA medical opinions were issued in January 2021. Regarding the low back claim, the examiner gave a negative opinion that the low back was the result of military service. He noted that while the Veteran was seen for left posterior thoracic pain during service in May 1964, it appeared to be acute as there was no record of any further treatment during service for any low back complaints. The examiner also noted that there was no record of the Veteran having any difficulty performing the duties of his military occupational specialty due to a back condition. He further noted that the Veteran received excellent performance reviews in December 1966 and February 1968 and that there was no record of a profile status for a back condition or any inability to perform the Army Physical Fitness Test during service. Additionally, the examiner noted that the separation exam was silent for any severe or recurrent back pain complaints or diagnosed back condition and that the Veteran was found fit for separation. Furthermore, the examiner noted that while the Veteran is deemed competent to report a history of symptomatology, he is not capable of diagnosing those symptoms or of establishing an etiological relationship as there was no objective evidence that any chronic back shoulder condition was incurred in or caused by service and no etiological or pathophysiological basis for the left thoracic muscle strain noted on exam in May 1964 to cause lumbar spinal degenerative arthritis with stenosis and facet arthropathy. Finally, the examiner found that the low back condition was at least likely as not due to the normal wear and tear since service separation. Regarding the left shoulder, the examiner gave a negative opinion that the left shoulder was due to military service. He noted that while the Veteran was seen for unspecified shoulder pain during service in May 1964, there was no mechanism of injury noted. In addition, the examiner noted that the left shoulder complaint appeared to be acute as there was no record of any further treatment during service for any left shoulder complaints. The examiner also noted that there was no record of the Veteran having any difficulty performing the duties of his military occupational specialty due to a left shoulder condition. He further noted that the Veteran received excellent performance reviews in December 1966 and February 1968 and that there was no record of a profile status for a left shoulder condition or any inability to perform the Army Physical Fitness Test during service. Additionally, the examiner noted that the separation exam was silent for any severe or recurrent left shoulder complaints or a diagnosed left shoulder condition and that the Veteran was found fit for separation. Furthermore, the examiner noted that while the Veteran is deemed competent to report a history of symptomatology, he is not capable of diagnosing those symptoms or of establishing an etiological relationship as there was no objective evidence for any chronic left shoulder condition incurred in or caused by service. Finally, the examiner found that the left shoulder condition was at least likely as not due to the normal wear and tear since service separation. Addendum VA opinions were issued in February 2021. The examiner gave negative opinions that the low back and left shoulder disorder are due to military service. He noted the previous rationale in the January 2021 VA medical opinions for both the low back and left shoulder disorders as well as noting the Veteran's credible continuous pain complaints. However, the examiner found that while the reports of the low back and left shoulder were deemed credible, the weight of the medical evidence did not support an etiology for the current low back and left shoulder diagnoses incurred in or due to service. The examiner then noted that the low back and left shoulder disorders were at least as likely due to the normal wear and tear over the 50 years since the Veteran's separation from service. The Board finds the VA opinions persuasive. The examiners noted the Veteran's self-reported medical history, indicated a review of the claims file, and based this opinion on the Veteran's interview, the claims file review, and the VA examination results. Further, the opinion is based on the evidence summarized earlier, which indicates no low back or left shoulder problems for approximately 45 years following service. The most recent opinions take into account the Veteran's reports of continuity of symptomology and addresses why these are found not to be persuasive. The Board finds the rationale adequate and give more probative weight to the VA examiner who assessed the Veteran's testimony but cited to instances in the record which contradict the testimony and also cited to medical principles which also weigh against continuity. The STRs demonstrates that the Veteran's low back and left shoulder conditions resolved, with no evidence of subsequent complaints of, diagnosis of, or treatment for low back or left shoulder complaints. The first complaints of low back and left shoulder issues post-service were in December 2013 and May 2018, respectively. There is a long period of time between discharge and the first evidence of low back and left shoulder complaints. The prolonged period without treatment factors against the Veteran's claim. The Board finds the lack of contemporaneous evidence of chronic low back and left shoulder problems and the VA examiner's analysis of why there is no continuity outweighs the probative value of the Veteran's testimony and allegations. As such, the Board finds the VA opinions of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Furthermore, these VA opinions are the only probative evidence that address the issue of medical nexus. The Veteran has not submitted or identified any evidence demonstrating a positive medical nexus between his disorders and military service. In light of the negative nexus opinions and lack of a positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran's low back and left shoulder disorders. In adjudicating these claims, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his low back and left shoulder disorders are the result of his military service. He testified at the Board hearing that he injured his low back and left shoulder while conducting maintenance on an aircraft's tail hook, which required him to lift and hold the tail hook, while another service member placed a pin in the tail hook assembly in order to lock it in place. In addition, he testified that he has experienced continuous and worsening pain complaints in his low back and left shoulder since service, but denied any prior or subsequent injuries to his low back and left shoulder. Furthermore, he testified that he did not seek treatment for his low back and left shoulder post service because "I'm not the type of person that goes to the doctor unless I'm really, really hurting or something." While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his low back and left shoulder disorders require specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. In addition, while the undersigned found the Veteran truthful and credible, his testimony is outweighed by the medical evidence of record which demonstrates that his low back and left shoulder disorders are not due to his military service. Since a preponderance of the evidence weights against the Veteran, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, his claims for service connection are denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.