Citation Nr: 21007435 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-47 559 DATE: February 9, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. REMANDED Entitlement to a back disability, to include spina bifida occulta and lumbosacral strain, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right shoulder disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's left shoulder disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1980 to June 1980. The matter comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision, which the Veteran subsequently appealed to the Board. In April 2019, the Board then denied the claims for service connection for the left and right shoulder disabilities and the spina bifida occulta disability. Thereafter, the Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans’ Claims (Court). In a Court order dated February 19, 2020, pursuant to a February 3, 2020 Joint Motion for Remand, the Court vacated the Board’s April 2019 denials and remanded the issues back to the Board. Subsequently, in July 2020, the Board remanded the claims for new opinions. The claims are now returned before the Board. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board further notes that the record includes diagnoses of spina bifida occulta and lumbosacral strain. See October 2020 VA Back Conditions Disability Benefits Questionnaire (DBQ). It is well settled that a claimant does “not file a claim to receive benefits only for a particular diagnosis, but for the affliction his... condition, whatever that is, causes him.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given such, the Board finds it appropriate to recharacterize the separate service connection issues for back disorders as a single claim for entitlement to service connection for a back disability, to include spina bifida occulta and lumbosacral strain. 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). 1. & 2. The claims for entitlement to service connection for right and left shoulder disabilities are denied. For the following reasons, entitlement to service connection for right and left shoulder disabilities are denied. Initially, the Board finds that there are current diagnoses of right and left shoulder disabilities. See October 2020 VA Shoulder and Army Conditions DBQ (showing current diagnoses of right and left shoulder rotator cuff tendonitis). Therefore, the first element of service connection has been met. However, the Board finds that the second element of service connection – an in-service event, injury or disease – has not been met. The first mention in the record of any shoulder condition is in September 2016, which is more than three decades after the Veteran’s discharge from active duty. See September 2016 private medical record (showing a diagnosis of tendinopathy of the distal supraspinatus tendon with reactive subacromial subdeltoid bursitis). Additionally, the Veteran did not specify whether or how his bilateral shoulder disabilities are related to service. In fact, at the October 2020 VA examination, the Veteran stated that his bilateral shoulder pain began in 1981, which was after he left service. See October 2020 VA examination (medical history section). His service treatment records are also silent for any complaints of a shoulder problem and his entrance and separation examinations showed normal findings as to the shoulders. Thus, without more, the preponderance of the evidence is against a finding of an in-service incurrence of any shoulder disability. Because the second element of service connection has not been met, and an award of service connection is not warranted. Furthermore, even if the second element were met, service connection could not be granted because the third element of service connection, the nexus, is not met. There is no competent evidence that the Veteran’s current shoulder disability is related to his service. Per the July 2020 Board remand, a new VA etiology opinion was rendered for this claim in October 2020. See October 2020 VA medical opinion DBQ. The Board finds persuasive this October 2020 VA medical etiology opinion from the VA examiner, who opined that the Veteran’s shoulder disability is less likely than not incurred in or caused by service. In opining so, the VA examiner properly considered the Veteran’s lay contention, including that his bilateral shoulder pain did not begin until 1981, which was after he left service. See October 2020 VA examination (medical history section). Based on the foregoing, the Board finds the opinion to be sufficient and entitled to probative weight. There are also no competent private or VA medical records on file that provide contrary findings to this October 2020 VA negative etiology opinion. Even if the Veteran contends that his shoulder disability is related to service, the record does not demonstrate that the Veteran has special training in or acquired any medical expertise. While lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the Board finds the specific issue here (i.e., etiology) is outside the realm of common knowledge of a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony in general is not competent to prove that which would require specialized knowledge or training). Thus, as the negative VA opinion carries probative weight, the preponderance of the evidence weighs against a finding that the Veteran’s shoulder disability is related to his service. As such, service connection is denied. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102 (2016); Ortiz v. Principi, 274 F.3d 1361, 1364 (2001); Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND 3. Entitlement to a back disability, to include spina bifida occulta and lumbosacral strain, is remanded. Per the July 2020 Board remand, the claim was remanded for a VA examination and etiology opinions, which were obtained in November 2020. However, the Board finds that the November 2020 VA examiner's opinion is inadequate to decide the claim. As an initial matter, while the examiner characterized the Veteran’s spina bifida occulta as a “congenital disorder,” she did not indicate whether the disorder is a disease or a defect. If it was a defect, the examiner should have also addressed whether the Veteran's congenital defect of spina bifida occulta was subject to a superimposed disease or injury during service that resulted in additional disability. The examiner also failed to address whether the lumbosacral strain was related to any instance of his military service. Furthermore, the Veteran’s service treatment records show a diagnosis of thoracolumbar scoliosis. See May 1980 Service Treatment Record. However, the examiner did not address this diagnosis and whether the Veteran still currently has thoracolumbar scoliosis. Therefore, a remand is necessary in order to obtain an addendum opinion addressing such matters. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA treatment records and associate the records with the claims file. Any negative reply should be properly included in the claims file. 2. After completion of the above development, obtain a new etiology opinion for the back disability from a new VA examiner. If the examiner determines that a new VA examination is necessary to provide the opinion, then schedule a new examination. The record and copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. All necessary tests should be completed. Based on the review and the examination, the examiner is asked to: a) Identify any and all back disabilities diagnosed during the appeal period and on current examination. The examiner should specifically address the Veteran’s spina bifida occulta and lumbosacral strain. The examiner must also address whether the Veteran has a current diagnosis of thoracolumbar scoliosis (which is indicated in a May 1980 Service Treatment Record). b) State whether each diagnosed back disability is (i) a congenital/developmental defect or (ii) a congenital/developmental defect disease or (iii) an acquired disease or injury. NOTE: a defect is a structural or inherent abnormality or condition that is more or less stationary in nature whereas a is defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be unknown. c) For each back disability that is determined to be a congenital/developmental DEFECT, opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that the condition was subject to a superimposed disease or injury, resulting in a current back disability. If yes, please identify the superimposed disease or injury, as well as the resultant disability due to such superimposed disease or injury. d) For each back disability that is determined to be a congenital DISEASE, opine whether there is clear and unmistakable evidence (unmistakable) that the congenital disease was not aggravated during service. In other words, is there undebatable evidence that there was no increase in the disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. e) For each back disability that is NOT determined to be a congenital/developmental defect or congenital disease, opine as to whether it at least as likely as not (a probability of 50 percent or greater) had its onset in service or is otherwise related to the Veteran’s service. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST “CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO.” SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4.Then, re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.