Citation Nr: 21011660 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-65 948 DATE: March 2, 2021 ORDER Service connection for a right shoulder disability is denied. Service connection for a low back disability is denied. REMANDED Service connection for abdominal pain is remanded. Service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. There was no right shoulder injury or disease during service. 2. The current right shoulder disability was manifested several years after service and is not causally or etiologically related to service. 3. There was no low back injury or disease during service. 4. The current low back disability of lumbosacral strain was manifested several years after service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service in the U.S. Navy from September 2009 to September 2013. This matter is on appeal from a March 2016 rating decision. In a July 2019 decision, the Board denied service connection for a right shoulder disability, a back disability, a right ankle disability, abdominal pain, a left jaw scar, and acne. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court or CAVC). The Board's decision was partially vacated pursuant to a Joint Motion for Partial Remand (Joint Motion or JMPR) on the bases that the Board improperly relied on an inadequate June 2017 VA medical opinion because the examiner did not address the Veteran’s reports of an onset of back pain during service and continuing symptoms since service. The Joint Motion agreed that the Board needed to address the Veteran’s report that he experienced right shoulder pain during service but did not seek treatment, and that the Board did not adequately explain why treatment for the right shoulder disability would have ordinarily been present in treatment records. The Joint Motion agreed that the Board provided inadequate reasons and bases for finding that there was no evidence of a current right ankle disability and abdominal disability because the Board did not discuss whether the reported symptom of right ankle pain and abdominal pain establish a current disability as outlined in Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (Fed. Cir. 2018). The Joint Motion agreed that the Board erred by not addressing the duty to assist for all issues and explaining how it was satisfied. The case now returns to the Board. After reviewing relevant lay and medical evidence of record, in order to give the Veteran fair process notice, the Board sent a January 2021 letter to him advising him that that it planned to find that there was no back injury or back symptoms during service and no continuing back symptoms since service. The Board asked the Veteran to submit, within 30 days of the letter, all evidence and argument that shows in-service back symptoms and back symptoms since service and to explain why his account of in-service back symptoms and back symptoms since service should be deemed as credible and accepted as fact. During the 30-day period, the Veteran submitted evidence relevant to other claims but did not respond to the letter or submit evidence or argument relevant to the service connection appeal for the low back disability. The Veteran’s claims for a right shoulder disability and low back disability were filed as a Fully Developed Claim (FDC) pursuant to the Secretary of VA’s program to expedite claims. Under this framework, a claim is submitted in a "fully developed" status, limiting, if not eliminating, the need for further development by VA. As part of the FDC process, a veteran is to submit all evidence relevant and pertinent to the claims; however, under certain circumstances, additional development may still be required prior to adjudication of the claims. This additional development may include obtaining additional records and/or providing a VA medical examination to the appellant. See VA Form 21-526EZ. In this case, the Veteran has received all essential notice, and has had a meaningful opportunity to participate in the development of the claims. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Thus, the notice that is part of the claim form submitted by the Veteran satisfies the VCAA duty to notify. The duty to assist has also been satisfied. The complete service treatment records and all identified post-service treatment records are associated with the record. No VA examination was provided, and no VA medical opinion was obtained because there was no credible evidence of in-service low back or right shoulder injury, disease, or symptoms during service, so no such development was needed because, after the Board weighed the evidence, there was in fact nothing in service to which a current disability could be related. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). Because the back and right shoulder symptoms are attributable to a known clinical diagnosis, verification of Persian Gulf service is not needed prior to adjudication of the service connection appeal for the right shoulder disability because presumptive service connection is not applicable in this case. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnoses of right shoulder instability with a history of recurrent dislocation and right shoulder surgery and lumbosacral strain are not listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable. 1. Service Connection for a Right Shoulder Disability is Denied. The Veteran contends the current right shoulder disability is the result of his job working on the flight deck of an aircraft carrier during service, which required him to carry heavy loads. He asserts that he experienced right shoulder pain during service but did not then always have time to seek medical treatment for his aches and pains and continued to experience right shoulder pain since service. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of right shoulder injury or disease during service. The service treatment records, which are complete, are absent of any report, complaint, diagnosis, or treatment for right shoulder injury or problems. On the August 2013 service separation report of medical history, the Veteran, contemporaneous to service separation and with a recent memory of events in service, indicated that he was in good health and checked “no” when asked if he then had or had ever had swollen or painful joints and when asked if he then had or had ever had a painful shoulder. Contrary to his more recent assertions of experiencing aches and pains for which he did not seek treatment during service, on the August 2013 service separation report of medical assessment completed by the Veteran contemporaneous to service, the Veteran answered “no” when asked if he had suffered from any injury or illness while on active duty for which he did not seek medical care. The service treatment records are complete, and show treatment for various medical problems, to include a sprained ankle, which is an orthopedic (joint) disability that manifested symptoms typical of orthopedic injury (see 38 C.F.R. §§ 4.40, 4.45, 4.59), including joint pain. The Veteran was also provided an opportunity to report right shoulder problems on the August 2013 service separation report of medical history and the August 2013 service report of medical assessment, where he specifically denied having any shoulder problems – while simultaneously reporting that his sprained ankle had resolved without complications. For these reasons, the Board finds that a right shoulder (joint) injury or disease, including any right shoulder (orthopedic) symptoms, is a condition that would have ordinarily been recorded during service if it had been present, especially in this Veteran’s case where he was willing to and in fact did report another joint injury to the ankle and typical orthopedic symptoms. In this case, the lay and medical evidence generated contemporaneous to service, which includes both medical findings and the Veteran’s own reported histories during treatment and in a medical history, shows no right shoulder problems or findings or history of injury or report of symptoms. This history and findings is likely to reflect accurately the Veteran's physical condition because it is contemporaneous to service, is based on lay and medical evidence, and includes reports of a similar joint disability (to the ankle), so is of significant probative value and provides evidence against a finding of right shoulder injury, right shoulder disease, or right shoulder symptoms during service. The weight of the lay and medical evidence is against finding that the current right shoulder disability is related to service. The earliest credible evidence of right shoulder symptoms is in 2015, approximately two years after service, and that history and reports of symptoms are related to the intercurrent cause of a post-service motor vehicular accident (MVA) injury. In August 2015, the Veteran received treatment for right shoulder pain following the post-service MVA that had occurred earlier that day, giving no history of in-service right shoulder injury or symptoms or of continuous symptoms after service prior to the post-service MVA. This history of recent post-service MVA and related injury and symptoms that the Veteran presented for treatment purposes, with no history of in-service injury or symptoms or of post-service symptoms prior to the MVA, is highly probative because one would likely present an accurate medical history during treatment in order to receive efficacious treatment for the injury or symptoms that include pain. It is notable that, approximately one month earlier and prior to the post-service MVA, a July 2015 VA primary care note shows that the Veteran reported low back and left shoulder pain were reported during systems review, with no mention of right shoulder pain. As the history solicited was broad enough to encompass any right shoulder disorder and related history, had there in fact been any right shoulder disorder or symptoms present. Both by the nature of the “systems” review and by the fact that a left shoulder pain was specifically identified during this review, any right shoulder history or disorder would equally have been elicited, had it in fact been present at that time or had there been such a history of right shoulder injury or symptoms in service or since service. Considered together with the absence of right shoulder injury, disease, or symptoms during service or after service prior to August 2015, and the August 2015 post-service MVA-related right shoulder injury, the gap of approximately two years between service and the onset of right shoulder symptoms is one factor among others in this case that tends to weigh against a finding of service incurrence. The Board has considered the Veteran's competent lay account of right shoulder pain during and since service; however, because the account is inconsistent with, and outweighed by, other more contemporaneous and more probative lay and medical evidence that includes lay and medical evidence contemporaneous to service showing no right shoulder injury, disease, or symptoms, namely, the Veteran’s own reporting of history and symptoms during service and at service separation, and the post-service lay and medical evidence, and highly probative medical histories presented for treatment purposes that make no mention of in-service right shoulder injury or symptoms or continuous post-service symptoms, showing an onset of right shoulder pain approximately two years after service and after and resulting from an August 2015 post-service MVA. For these reasons, the Veteran’s more recent account of right shoulder pain and symptoms during and since service is not credible, so is of no probative value in establishing an in-service right shoulder injury or disease or right shoulder pain since service. Under the specific facts of this case, the Veteran is not otherwise competent to link the current right shoulder disability to his in-service work on the flight deck of an aircraft carrier when there was no right shoulder injury, disease, or symptoms during service, no continuous post-service symptoms, and the earliest post-service evidence of right shoulder injury and symptoms was in 2015 after and attributed to a post-service MVA. Subsequently, in 2017, the Veteran experienced yet another post-service right shoulder injury related to post-service work as a firefighter. For these reasons, the Board finds that the weight of the evidence is against a finding that the current right shoulder disability, which was manifested years after service and had its onset after one post-service injury and was followed by a second post-service injury, is related to service. The Veteran is competent to report right shoulder symptoms and to describe right shoulder dislocation; however, under the facts of this case – i.e., no in-service right shoulder injury, disease, or symptoms, including shoulder dislocation, and no onset of right shoulder symptoms until years after service and then, by the Veteran’s own account, related to an August 2015 post-service MVA – the Veteran’s recent account of right shoulder pain during and since service made for compensation purposes is outweighed by the other lay and medical evidence of record, so is not credible. The Veteran has not reported that he had a right shoulder dislocation during service, and the weight of the credible lay and medical evidence contemporaneous to service shows no in-service right shoulder dislocation. For these reasons, any purported opinion that the current right shoulder disability is the result of service would be based on the factually inaccurate assumption of right shoulder injury and symptoms during service, so would be of no probative value. As the weight of the evidence shows no in-service right shoulder injury, disease, or symptoms, and no right shoulder injury or symptoms until two years after service related to a post-service August 2015 MVA, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a right shoulder disability; therefore, the appeal must be denied. 2. Service Connection for a Low Back Disability is Denied. The Veteran contends that he experienced low back injury and low back pain during service, and that the back symptoms continued after service. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a low back injury or disease was manifested during service. The service treatment records, which are complete, are absent of any report, complaint, findings, diagnosis, or treatment for back problems other than a one-time mention of back pain in November 2009. The evidence does not show chronic back symptoms or recurrent back pain during the rest of service. On the August 2013 service separation report of medical history, the Veteran indicated that he was in good health and checked “no” when asked if he then had or had ever had swollen or painful joints and when asked if he then had or had ever had recurrent back pain. On the August 2013 service separation report of medical assessment completed by the Veteran contemporaneous to service, the Veteran answered “no” when asked if he had suffered from any injury or illness while on active duty for which he did not seek medical care. The service treatment records are complete, and show treatment for various medical problems, to include a sprained ankle, which is an orthopedic (joint) disability that manifested symptoms typical of orthopedic injury (see 38 C.F.R. §§ 4.40, 4.45, 4.59). The Veteran was also provided an opportunity to report low back problems on the August 2013 service separation report of medical history and the August 2013 service report of medical assessment, where he specifically denied having any back problems while simultaneously reporting that his sprained ankle had resolved without complications. For these reasons, the Board finds that a low back injury or disease, including any back symptoms, is a condition that would have ordinarily been recorded during service if it had been present, especially in this Veteran’s case where he was willing to and in fact did report another joint injury to the ankle and typical orthopedic symptoms. In this case, the lay and medical evidence generated contemporaneous to service, which includes both medical findings and the Veteran’s own reported histories during treatment and in a medical history, shows no back problems or findings, no history of back injury, and no report of back symptoms. The documented history and findings is likely to reflect accurately the Veteran's physical condition because it is contemporaneous to service, is based on lay and medical evidence, and includes reports of a joint disability (i.e., ankle), so it is of significant probative value and provides evidence against a finding of back injury, back disease, or chronic back symptoms during service. The weight of the lay and medical evidence is against a finding that the current back disability is related to service. The earliest evidence indicating low back symptoms is in 2015, approximately two years after service separation. In July 2015, while seeking medical treatment, the Veteran reported low back pain with no history of a specific trauma. Statements such as these made for treatment purposes are particularly trustworthy because an individual has an incentive to report accurately the history of symptoms to receive proper care. Considered together with the evidence of no in-service back injury or back symptoms, the absence of evidence of complaint or diagnosis of a back disability for approximately two years after service is another factor that weighs against a finding of service incurrence. The Board has considered the Veteran's more recent lay account of low back injury and recurrent low back pain during and since service; however, this more recent lay account is inconsistent with, and outweighed by, other lay and medical evidence more contemporaneous to service showing no back injury or disease in service, and no back symptoms other than a one-time complaint of back pain in November 2009 with no other back complaints for the remaining four years of service, and more contemporaneous post-service lay and medical evidence showing an onset of back problems approximately two years after service and then reportedly unrelated to a specific trauma. For this reason, the Veteran’s lay account of back injury during service and recurrent back pain during and since service is not deemed credible, so is of no probative value. Other evidence that weighs against a finding that the current back disability is related to service includes a VA examiner’s opinion that the current back disability is not related to service. After review of the record and interview and examination of the Veteran, the June 2017 VA examiner opined that the current back disability was less likely than not related to service. In support of the medical opinion, the June 2017 VA examiner noted that there was documentation of low back pain in 2009, but also noted there was limited documentation of low back pain in service, and that the service separation physical was silent for a low back condition or low back pain. The June 2017 VA examiner also explained that post-service treatment records showed low back pain two years after service separation, and the 2017 lumbar spine x-ray was negative for a back condition. Because the June 2017 VA examiner has medical training and expertise, considered an accurate medical history based on review of the record, and provided a sound rationale for the medical opinion, the Board finds that the June 2017 VA medical opinion is of significant probative value on the question of nexus between the current back disability and the in-service back pain symptoms and treatment. There is no competent medical opinion to the contrary of record. Although the Veteran has asserted that the current low back disability was causally related to service, he is a lay person and, under the specific facts of this case, does not have the requisite medical expertise to be able to diagnose a back disability or render a competent medical opinion regarding the cause of a back disability. In this particular case, the facts (as found by the Board upon weighing of all evidence) show a one-time back complaint in 2009 with no other in-service back injury or disease or symptoms during service, no back complaints for two years after service, and a negative back x-ray in 2017. Making a competent diagnosis of lumbosacral strain involves an understanding of the unseen systems of the spine and musculoskeletal system, the ability to differentiate between several potential back diagnoses after consideration of the history of any injury, symptoms, and various possible etiologies. For similar reasons, relating the currently diagnosed lumbosacral strain to the one back complaint in service in 2009, over an absence of chronic symptoms in service or continuous symptoms since service, is beyond the competency of this Veteran. The cause of the back disability involves complex medical etiological questions because it pertains to the origin and progression of the musculoskeletal condition. The Veteran is competent to relate symptoms of a back disability that he experienced at any time, but he is not competent to opine on whether there is a link between the current back disability and service because such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the musculoskeletal systems (including joints), knowledge of the various risk factors and causes of musculoskeletal conditions, specific clinical testing for musculoskeletal conditions, and knowledge of likely date of onset and ranges of progression of musculoskeletal conditions that the Veteran is not shown to possess. Such opinion would require not only knowledge of the musculoskeletal system. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). Thus, while the Veteran is competent to relate symptoms of back pain that he experienced at any time, in the absence of in-service back injury or back disease or back symptoms other than a one-time report of back pain in November 2009, and in the context of post-service onset of back pain two years after service separation, the Veteran is not competent to opine on whether there is a link between the current back disability, which was two years after service separation, and active service because such diagnosis and nexus require specific medical knowledge and training the Veteran does not possess. For these reasons, the Veteran’s purported opinion that the current back disability is the result of service is of no probative value. Thus, in consideration of the foregoing, the Board finds that weight of the evidence is against service connection for a back disability; therefore, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Service Connection for Abdominal Pain 4. Service Connection for Right Ankle Disability Prior to complying with the June 2020 JMPR order for the Board to discuss whether the evidence of abdominal and right ankle pain establish a current disability for VA purposes, the issues of service connection for abdominal pain and a right ankle disability will be remanded to help determine whether the Veteran has qualifying service as a Persian Gulf Veteran so that presumptive service connection for these claimed disabilities (as a qualifying chronic disability to include as due to undiagnosed illness) to apply presumptive service connection. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Much of the DD Form 214 of record is illegible and the Veteran has reported naval service in the Persian Gulf. See March 2017 VA Persian Gulf Registry Note (noting that the Veteran reportedly served in the Navy from 2009 to 2013 and served a total of 16 months in the Persian Gulf with no shore duty). It is unclear based on the current record whether the Veteran’s naval ship served in the waters that would place him in the Southwest Asia Theater of Operations. For these reasons, a remand is warranted. The matters are REMANDED for the following actions: (Continued on the next page)   Determine whether the Veteran has qualifying service as a Persian Gulf Veteran (i.e., whether the naval ship served in the waters that would place the Veteran in the Southwest Asia Theater of Operations). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Palmer, 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.