Citation Nr: 21005588 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 20-11 309 DATE: February 2, 2021 ORDER Entitlement to service connection for a right shoulder disability (claimed as joint aches/chronic pain) is denied. Entitlement to service connection for left lower extremity (LLE) radiculopathy as secondary to service-connected lumbar intervertebral disc syndrome (IVDS) is granted. REMANDED Entitlement to service connection for shin splints is remanded. Entitlement to service connection for benign prostatic hyperplasia (BPH) as secondary to service-connected lumbar IVDS is remanded. Entitlement to service connection for a right hip disability as secondary to service-connected lumbar IVDS is remanded. Entitlement to service connection for a left knee disability (claimed as joint aches/chronic pain), to include as secondary to a right hip disability, is remanded. FINDINGS OF FACT 1. The Veteran’s right shoulder disability is not etiologically related to the Veteran’s active service and was not present to a compensable degree within one year of separation from his service. 2. The Veteran’s LLE radiculopathy is proximately due to or aggravated by his service-connected lumbar IVDS. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1137 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for LLE radiculopathy have been met. 38 U.S.C. §§ 1110 (2018); 38 C.F.R. § 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from June 1987 to June 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and January 2016 rating decisions issued by the VA Regional Office (RO). In August 2020, the Veteran cancelled his Board hearing and hence, it is deemed withdrawn. 1. Right Shoulder Disability The Veteran has contended that his right shoulder disability (claimed as joint aches/chronic pain) is related to his active service. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a right shoulder disability. Further, there are no STR notation of aches or pain pertaining to his right shoulder. A review of post-service VA medical records revealed that the Veteran first complained of right shoulder pain in April 2016 after he fell and injured his right shoulder. An X-ray revealed right acromioclavicular (AC) joint degenerative changes. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there is no indication from the record that a right shoulder disability was present to a compensable degree within a year of the Veteran’s separation from active service. Therefore, presumptive service connection is not warranted in this case. 38 C.F.R. § 3.309(a). The Board notes that the Veteran has provided nothing beyond a bare assertion to trigger VA’s duty to assist. 38 C.F.R. § 3.159(c)(4) (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, post-service medical records do not suggest that there is a relationship between the Veteran’s right shoulder disability and his active service. In sum, there is no service or post-service medical evidence that the Veteran’s right shoulder disability was related to or manifested within one year of his separation from his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right shoulder disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. LLE radiculopathy The Veteran has claimed that his LLE radiculopathy is secondary to his service-connected lumbar IVDS. An August 2020 VA examiner for back conditions determined that the Veteran had mild LLE radiculopathy. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service for LLE radiculopathy is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Shin Splints The Veteran has asserted that his shin splints are related to his active service. STRs reflected that the Veteran complained of bilateral shin pain and weakness in his legs in February 1990. He reported that weakness in his legs caused them to give out while running. In August 1990, he had tenderness in his legs upon doing straight leg raises. A review of post-service VA medical records revealed that the Veteran reported numbness and tingling along his lateral left leg and left leg weakness in December 2012. In light of the STR notations and the post-service complaints; the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present shin splints. McLendon, 20 Vet. App. 79. 2. BPH The Veteran has asserted that his BPH is secondary to his service-connected lumbar IVDS. In December 2015, a VA staff physician diagnosed the Veteran with BPH after he complained of experiencing worsening symptoms with urination. As there is no medical opinion of record on a secondary service-connection basis, a remand is warranted. McLendon, 20 Vet. App. 79. 3. Right Hip Disability The Veteran has asserted that his right hip disability is secondary to his service-connected lumbar IVDS. A review of post-service private and VA medical records showed that the Veteran presented with an antalgic gait. In an August 2018 and August 2019 statements, the Veteran’s private physician opined that it was likely that the Veteran’s right hip disability was secondary to his service-connected lumbar IVDS. She indicated that the Veteran’s right hip disability resulted from an altered gait to compensate for his back pain but provided no further rationale. In an August 2019 statement, the Veteran’s private family nurse practitioner opined that it was at least as likely as not that the Veteran’s right hip pain was caused by his service-connected lumbar IVDS. However, she did not provide a rationale. The Veteran was afforded VA examinations in December 2018 and August 2019. The examiners opined that it was less likely than not that the Veteran’s right hip disability was related to his service-connected lumbar IVDS. They found no medical records supporting any association or connection. The December 2018 VA examiner noted that the Veteran’s right hip disability was secondary to advance degenerative changes. The August 2019 VA examiner stated that the Veteran’s right hip disability was due to age-related deterioration of the joint. The Board finds that the December 2018 and August 2019 VA medical opinions are inadequate for adjudication purposes. In this regard, the examiners’ rationales did not address the Veteran’s antalgic/altered gait. Furthermore, the examiners did not provide an aggravation opinion. As such, a remand is warranted for an addendum VA medical opinion. 4. Left Knee Disability There is medical evidence of record indicating that the Veteran’s left knee disability (claimed as joint aches/chronic pain) may be secondary to his right hip disability. Specifically, in October 2018, a VA staff physician stated that it was likely that the Veteran’s left knee disability was due to overuse following his right hip displacement and favoring of his left side. Therefore, the Board finds that a VA examination is warranted to determine the nature and etiology of any currently present left knee disability. McLendon, 20 Vet. App. 79. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present shin splints. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should determine whether it is at least as likely as not (50 percent or better probability) that the Veteran’s shin splints are etiologically related to his active service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present BPH. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present BPH was caused or aggravated (chronically worsened) by the Veteran’s service-connected lumbar IVDS. The rationale for all opinions expressed must be provided. 4. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of any currently present right hip disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right hip disability was caused or aggravated (chronically worsened) by the Veteran’s service-connected lumbar IVDS. The examiner must address the Veteran’s altered/antalgic gait. The rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present left knee disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should determine whether it is at least as likely as not (50 percent or better probability) that the Veteran’s left knee disability is etiologically related to his active service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present left knee disability was caused or aggravated (chronically worsened) by the Veteran’s right hip disability. The examiner must address the Veteran’s altered/antalgic gait. The rationale for all opinions expressed must be provided. 6. Confirm that VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 7. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.