Citation Nr: 21075978 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-04 632 DATE: December 22, 2021 ORDER Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. The Veteran's right shoulder disability was at least as likely as not incurred during service. 2. The Veteran's back disability was at least as likely as not incurred during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from July 1985 to July 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In August 2019, the Board denied the Veteran's service connection claims for a back disability, right shoulder disability, and respiratory disability. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which granted a Joint Motion for Partial Remand (JMR) in November 2020. Consistent with the terms of the JMPR, the Board remanded the claims to the AOJ in March 2021 for VA examinations to evaluate the nature and etiology of the Veteran's back and right shoulder disabilities. In July 2021, the Board remanded the claims again for addendum opinions, which were provided in October 2021. While the Board finds that these opinions are inadequate, remand is not warranted in light of the grant of service connection. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AOJ granted the Veteran's service connection claim for a respiratory disorder in a May 2021 rating decision. As such, this issue is no longer before the Board. Additionally, the Board notes that the Veteran's claim for service connection for a skin disorder of the bilateral hands will be addressed in a separate decision. The Board denied the claim in an April 2020 decision and the Veteran appealed the denial to CAVC. In an April 2021 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the April 2020 decision. The Board remanded the claim in November 2021 for a VA examination and adjudication with the AOJ is still pending. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present 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 service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a right shoulder disability 2. Entitlement to service connection for a back disability The Veteran maintains that his back and right shoulder disabilities manifested during service and that his symptoms have continued since discharge. The Board finds that the elements of entitlement to service connection for a back and right shoulder disabilities have been met. With respect to current disability, the Veteran was diagnosed by diagnostic imaging with degenerative arthritis of the back and right shoulder. At this time, diagnostic imaging also showed a chronic compression fracture at T11. Additionally, an April 2021 VA examiner provided diagnoses of lumbosacral strain and impingement syndrome of the right shoulder. Accordingly, the first element of service connection has been satisfied for a back and right shoulder disabilities. With regard to in-service incurrence, the Veteran reported that he developed chronic back pain from having to bend and stoop to work on jet engines during service. He elaborated that there were times when he would be underneath an engine all day and have to bend in many different positions throughout the day. He further reported that this work led to several instances where he was unable to function and had to rest for the weekend due to severe back pain. Additionally, the Veteran reported that, shortly after discharge from service, he began wearing a weightlifting belt and back brace when doing strenuous work because of his back pain. Additionally, the Veteran reported that his right shoulder began to bother him in bootcamp, where he was required to carry packs that weighed 75 pounds. The Veteran also reported that he developed chronic pain in the right shoulder from working on aircrafts during service. He indicated that he was required to overhaul, disassemble, and reassemble parts on aircrafts. He elaborated that the parts weighed up to 50 pounds and he had to reach into difficult spots to maneuver them on a daily basis. He further reported that he never went to sick call because he figured he could deal with the pain and did not want to be considered weak. However, he indicated that his right shoulder pain interfered with his ability to perform routine activities around the house, such as playing with his children, walking the dog, and painting the house. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements, as the Veteran's statements are consistent with military personnel records and statements made by his wife and a longtime friend. The Veteran's DD 214 confirms that he performed turbofan jet engine first degree repair and was an IMA mechanic for almost four years. Additionally, a friend submitted a statement in October 2021, in which he reported that the Veteran was his teacher when he was studying to be an FAA certified mechanic in the mid-1990s, not long after separation from service, and that they became friends along the way. He elaborated that the Veteran has shared with him that he has had chronic pain in the back and shoulder throughout the duration of their relationship. He further reported that the Veteran was unable to demonstrate the removal of aircraft parts during the classes he taught due to his pain. He also reported that the Veteran complained that long drives were too much for his back pain, which made it difficult for him to visit. Additionally, the Veteran's wife submitted as statement in October 2021, in which she reported that the Veteran has complained about back and right shoulder pain since she met him in 2006. She further indicated that the Veteran attributed his pain to the heavy packs he carried during bootcamp and the work he did with aircraft engines during service. From this evidence, the Board finds that the Veteran's competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current back and right shoulder disabilities. The record contains two negative opinions addressing a nexus. In April 2021, a VA examiner concluded that the Veteran's current back disability and shoulder disability are less likely than not caused by or a result of an event in military service. The examiner reasoned that there are no treatment records for back or shoulder pain in service or after that would link his current condition to service. The examiner further reasoned that the Veteran's back and shoulder pain could have been caused by his work or lifestyle after service. In a July 2021 remand, the Board concluded that this opinion was inadequate because it relied solely on the absence of medical records and failed to consider the Veteran's military occupational specialty or the Veteran's reports of onset and symptomatology. An addendum opinion was requested, and in October 2021, another VA examiner offered a negative nexus opinion. This examiner reasoned that there was no trauma noted in the Veteran's service treatment records (STRs) and noted that the Veteran has only sought treatment on two occasions since service. The examiner provided additional details in her rationale, including the Veteran's post-service employment, top professions that carry high risk of back injuries, and a notation that a muscle strain is self-limiting and resolves without medical therapy. However, she did not explain how these details related to the Veteran's claim. She also did not consider the Veteran's MOS during service or his statements about onset and continued symptomatology since service. Accordingly, the Board finds that this opinion is inadequate, as it is based on an inaccurate factual premise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Conversely, the Veteran has consistently reported that he has had back and right shoulder pain since service, despite not seeking care for it. He has indicated that he is able to live with his pain and that did not want to go to the doctor. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303 (a); see also Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as they have been consistent throughout the Veteran's appeal. They are also consistent with the statements made by his wife and longtime friend, who have indicated that the Veteran has had chronic back and shoulder pain during the entire time they have known him. Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran, considered in combination with the clinical findings in the April 2021 VA examination and the statements made by his wife and longtime friend, is the most probative evidence of record. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, the Board finds that the most probative evidence establishes a nexus between service and the Veteran's current back and right shoulder disabilities. In sum, the weight of the evidence supports finding that the Veteran's back and right shoulder disabilities was incurred during his active service, and service connection is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 3.303 (a), (d). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.