Citation Nr: 21010944 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-23 761 DATE: February 26, 2021 ORDER Service connection for a left shoulder disability is denied. Service connection for a back disability is denied. Service connection for the left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The weight of the evidence fails to show that it is at least as likely as not that the Veteran’s left shoulder disability, to include arthritis, adhesive capsulitis, and shoulder and arm pain, was incurred in, caused by, or otherwise is etiologically related to his service, or had manifested to a compensable degree within one year from the date of discharge. 2. The weight of the evidence fails to show that it is at least as likely as not that the Veteran’s back disability, to include degenerative disk disease and degenerative joint disease, was incurred in, caused by, or otherwise is etiologically related to his service, to include a lumbar strain sustained in basic training, or had manifested to a compensable degree within one year from the date of discharge. 3. The weight of the evidence shows that the Veteran’s left lower extremity radiculopathy is secondary to his non-service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a lower left radiculopathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from February 1967 to February 1969. In a December 2014 rating decision, the Regional Office (RO) denied his claims for service connection for left shoulder/arm condition, claimed as pain, back injury, and tingling sensation in the left foot. In a March 2015 rating decision, upon receiving new and material evidence, the RO reopened the claims and affirmed the prior denials. The Veteran appealed. In January 2021, he testified at a Board hearing, a transcript of which is of record. The hearing transcript reflects the Veteran’s contention that his current back and left shoulder disabilities were incurred as a result of a field exercise during basic training in the spring of 1967, when he was hit across his back with a pugil stick with sufficient force to bring him to his knees, at which point could not get up, had to be taken to a dispensary for evaluation, given some pills, and placed on light duty for 4-5 days. Subsequently, he has developed a tingling sensation in his left foot, which the Veteran believes is secondary to his back and/or left shoulder injuries. Of further note is his April 2015 Notice of Disagreement expressing his perplexity as to why the RO had determined that he has a non-service-connected degenerative low back condition, since he is claiming that it is service-connected and he is not sure why his back condition was denied, particularly given that it was diagnosed. The Board will endeavor to explain. Service connection generally may be granted for a disability incurred in or due to service. See 38 U.S.C. § 1110. “Service connection” is a complex legal term connoting many factors, but essentially means that a particular disease or injury originated in service and caused a post-service disability, that is, a present disability as shown to had been incurred in or coincident to service. Id. To that end, establishing an entitlement to service connection requires the evidence of record to show: (1) the existence of the claimed disability; (2) a traumatic event in service, such as an injury or disease, and (3) a causal link between the claimed disability and the relevant trauma sustained in service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the existence of the Veteran’s claimed disabilities is not in dispute. A December 2014 VA examination report reflects the diagnoses of the left shoulder arthritis and left shoulder adhesive capsulitis, degenerative joint and disc diseases of the lumbar spine with left S1 radiculopathy. However, in addition to the clinical diagnoses of the claimed disabilities, the evidence also must show a causal link to a relevant trauma sustained in service, which has not been demonstrated in this case. The December 2014 VA examination report reflects a medical opinion that the Veteran’s back and left shoulder disabilities are less likely as not were incurred in, caused by, or otherwise are etiologically related to his service, to include his documented back strain injury sustained during basic training in March 1967. In considering the Veteran’s left shoulder disability, the examiner notes that the Veteran does not recall any specific injury to his left shoulder in service and his service treatment records (STRs) are negative for any left shoulder condition. The remainder of the STRs, to include his separation physical examination, is also negative for any left shoulder condition. Likewise, there is no mention of any left shoulder injuries during this evaluation. Further, the examiner notes that the Veteran did not report seeking any care for his left shoulder in the years immediately after leaving the service. A review of his claims file did not reveal any records of ongoing treatment for the left shoulder immediately after service. The examiner then notes that the Veteran worked doing heavy work as a machinist and a welder for many after leaving service until he recently retired. The Veteran began seeking care in the VA in 2000 but did not start seeking care for his left shoulder until 2011. In the intervening 10 years, his VA treatment records are silent as to any signs, symptoms, complaints, treatment or diagnosis that may be associated with any left shoulder condition. The first documented reference to the Veteran’s left shoulder is a September 2011 primary care telephone note reflecting the Veteran called in, complaining of left shoulder pain with onset one month ago upon injuring his left shoulder while using a chain saw at home. The next reference to his left shoulder is an October 2011 physical therapy evaluation report reflecting that, within past 2-3 months, the Veteran has noticed a lot of difficulty with range of motion in his left shoulder. This also dates the onset on his left shoulder symptoms approximately in August 2011. The next reference to his left shoulder is a January 2012 orthopedics evaluation. At that time, the Veteran gave a history of several months of the left shoulder pain, which dates the onset of the left shoulder symptoms around the same timeframe the Veteran reported to his primary care and physical therapy providers. Based on this evidence, particularly given the consistency of the three independent initial assessments by primary care, physical therapy, and orthopedics, all dating the Veteran’s left shoulder problems onset in 2011, while neither the Veteran nor his medical treatment records suggest any earlier problems, the examiner opines that it is less likely as not that the Veteran’s left shoulder arthritis and adhesive capsulitis were incurred in, caused by, or otherwise are etiologically related to his service. In considering the Veteran’s back disability, the examiner notes that the Veteran did recall that he was injured in the mid-back while in service. His STRs do document that he sought care for this injury and was placed on medication in March 1967. At the time, the Veteran was complaining of thoracic back pain in the area of the right scapula. He did have tenderness in the lower scapular area or his back from T9 to L1. He had full range of motion of the shoulder and full range of motion of the back. The x-rays were negative for any pathology. At that time, the Veteran’s injury was diagnosed as a lumbosacral strain and he was given medication. Of note, this is wholly consistent with the Veteran’s testimony in January 2021. However, upon noting that the Veteran’s injury was incurred during the early stages of his basic training and he had continued service for another two years, without any evidence of chronic ongoing treatment for his low back and his separation examination being negative for any back condition, the examiner opines that this particular in-service back injury appears to be a one-time acute mid-back strain. Based on this evidence, the examiner further opines that the Veteran’s current symptoms due to degenerative disease of the lower spine and the specific lower area of pathology is clearly distinct from the one-time strain in the mid-back that he had in the service. In reviewing the claims file, the examiner noted no evidence of a chronic ongoing back condition in the years immediately after leaving the service. Of note, this observation is also consistent with the Veteran’s testimony that he started getting his epidural steroid shots for pain in his back sometime in the mid-seventies, which is more than one year after his separation from service. The examiner again notes that the Veteran worked as a machinist and a welder for many years after leaving service and only recently has developed lumbar disc disease with radiculopathy. However, particularly given that the Veteran’s current symptoms due to degenerative changes and the specific areas of pathology are clearly distinct from the one-time strain that he had sustained in service, and no documented or reported treatment immediately after service, the examiner concludes that the Veteran’s current back disability is less likely as not was incurred in, caused by, or otherwise is etiologically related to his service, to include his back injury during basic training. The Veteran has not challenged the adequacy of the VA examination, the accuracy of its report, or the soundness of the rendered medical opinions. At the Board hearing, the Veteran’s representative requested that a new examination be obtained to consider the Veteran’s testimony. However, while the Board did find the Veteran to be credible at his hearing, a review of the VA examination report shows that the examiner had full knowledge of the Veteran’s in-service injury and reviewed the service treatment records contemporaneous with the injury. As such, the Board does not believe that sufficient additional evidence has been added by the testimony to necessitate a new medical opinion. The Board acknowledges the Veteran’s belief that his back and shoulder are the result of his in-service injury. However, absent any suggestion that he has specialized knowledge, training, or experience in rendering medical opinions, he is said not to possess the requisite expertise to competently discuss the etiology of his musculoskeletal disabilities, which are not shown to have continued directly from service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). This is why the Board may not accept his assertions to establish the nexus link, but rather must rely on the medical expert’s opinions. This leaves the Board with the lone medical opinion of record which turned out negative in this case. In weighing the Veteran’s belief that his current back and left shoulder disabilities are etiologically related to his back injury sustained in basic training against the only competent medical opinion of record leading to the opposite conclusion, the Board finds the medical evidence to be most probative here, which tips the scales against the claim. As such, absent competent evidence linking the Veteran’s current back and left shoulder disabilities to his service, the legal criteria for service connection have not been met and thus the claim must be denied. In reaching this conclusion, the Board has considered all available legal bases for establishing service connection, but ultimately has found that none of the legal provisions apart from those discussed above apply to the factual circumstances of this case. See 38 C.F.R. § 3.303(b), (d), 3.307(a), 3.309(a). For example, the Board has considered that service connection for degenerative arthritis may be granted on a presumptive basis when the disease manifests itself to a compensable degree within one year from the date of discharge. In this case, however, the record is devoid of any evidence suggesting that the Veteran’s back injury diagnosed as lumbosacral strain during service was a manifestation of his more recently diagnosed degenerative arthritis, particularly given the negative x-rays and no chronic ongoing treatment for the back during service, no any back problems noted or reported at discharge, and no documented or reported treatment thereafter until the mid-1970s. This is why the Board has found that the requisite causal link between the Veteran’s current medically complex musculoskeletal disabilities are attenuated from service by some years and thus must be shown by the medical evidence of record which ultimately fails to show such a causation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). By implication of the former finding, the Board further found no legal basis for an award of service connection for the Veteran’s tingling sensation in left foot diagnosed as a lower left extremity radiculopathy secondary to his back disability. The Veteran’s belief that his tingling sensation is secondary to his back or shoulder disability is correct. However, service connection for a secondary disability may be granted only when the primary disability is service connected, whereas here the Veteran’s radiculopathy is secondary to his back disability that has not been service-connected. See 38 C.F.R. § 3.310. Thus, service connection for radiculopathy also must be denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.