Citation Nr: 21072863 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-14 236 DATE: December 6, 2021 ORDER Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a lower back disorder is denied. FINDINGS OF FACT 1. The probative evidence indicates that a right shoulder disorder was not incurred in service. 2. The probative evidence indicates that a lower back disorder was not incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a lower back disorder are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1954 until March 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In January 2018 and January 2020, the Board remanded the claims on appeal for additional development. The case is again before the Board for appellate review. Service Connection The Veteran claims that he incurred right shoulder and lower back disorders during service. He claims that a fall injured his back and that the handling of a rifle injured his right shoulder. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a disability, a Veteran must show: (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 active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic disorders such as arthritis are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 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, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). 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 will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The relevant evidence consists of lay assertions from the Veteran, service treatment records (STRs), VA and private treatment records, and VA compensation examination reports dated in June 2017, August 2018, and July 2021. The evidence demonstrates that the Veteran has been diagnosed with shoulder and back disorders. This is documented most recently in the July 2021 VA reports. One report notes right shoulder arthritis, osteopenia, bone spur, enthesopathic changes and calcific tendinosis, and residuals of right rotator cuff tear. Another July 2021 report notes lumbar degenerative disc disease, spondylosis, healed compression fracture, and radiculopathy. The evidence also indicates that the Veteran experienced injuries during service. A September 1955 STR notes a fall accident and injury to the "left side." A January 1956 STR indicates "auto accident last night." The document notes headache, "routine eye refraction," and an illegible entry. The Veteran indicates that the fall accident injured his back and that his right shoulder injury resulted from using a rifle during infantry training. An August 2014 memorandum indicates, moreover, that certain STRs may be missing due to damage by fire while in possession of the government. As such, the Board will accept as true the Veteran's claims of injury during service. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (in a case in which a claimant's service records are unavailable through no fault of their own, there is a heightened obligation for VA to assist the claimant in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records). A preponderance of the probative evidence indicates, however, that current shoulder and back disorders were not incurred in service. The evidence indicates that the Veteran did not have a chronic back or shoulder disorder during service. The STRs in the record dated after January 1956 do not indicate complaints of, or treatment for, back or shoulder problems, or the diagnosis of a back or shoulder disorder. The March 1956 discharge report of medical examination is negative for a back or shoulder disorder, and notes both areas of the body as normal. Documents in the record dated in the 1950s and 1970s, some of which were submitted into the record by the Veteran following discharge from service, refer to education matters and a stomach disorder but do not refer to back or shoulder problems. The record contains no medical evidence indicating a back or shoulder disorder in the years after service. The earliest medical evidence addressing either disorder is dated in the 1990s, nearly 40 years after discharge from service. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The evidence shows rotator cuff tear in the right shoulder, degenerative changes in the shoulder and lumbar spine, and a compression fracture in the lumbar spine. The evidence therefore indicates that, for decades following service, the Veteran did not have the characteristic manifestations sufficient to identify a chronic disease entity involving the back or right shoulder. The evidence indicates that the Veteran did not have a chronic back or shoulder disorder during service or in the years following service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, none of the VA reports supports the claims of medical nexus. Each of the VA reports contains an opinion countering the claims. In the remands, the Board found the June 2017 and August 2018 VA examination reports and opinions inadequate. As such, the Board will not rely on them in deciding these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Nevertheless, the July 2021 VA reports adequately address the claims. Each notes the Veteran's current disorders, each notes the absence of evidence of such disorders at service discharge, each discusses the medical evidence indicating onset of problems after service, and each finds the disorders likely unrelated to service. The July 2021 VA opinions are probative. They are explained with citation to facts in the record, are based on a review of the claims file, and are based on an examination and interview of the Veteran. 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). And they are more persuasive than the Veteran's statements. (Continued on the next page) As a layperson, the Veteran is competent to describe observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as diagnosis and etiology. Degenerative disorders in the shoulder and spine are internal pathologies beyond his capacity for observation. They are medical matters and their development involves complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On these more complex questions, the VA opinions are more credible than the Veteran's opinions. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). This is particularly the case here given the absence of lay or medical evidence dated in the years following service indicating back or shoulder troubles. Thus, the Veteran's lay assertions are outweighed by the VA opinions on the question of medical nexus here. Based on the foregoing, the Board finds that the probative evidence of record preponderates against the claims of entitlement to service connection. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.