Citation Nr: 21011919 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-34 252 DATE: March 3, 2021 ORDER Service connection for right shoulder disability is denied. Service connection for low back disability is denied. FINDINGS OF FACT The weight of the competent and credible evidence of record is against a finding that the right shoulder and low back disabilities began during the Veteran’s military service, were caused by his service, had their onset within a year of his service, or have been continuous since service. CONCLUSIONS OF LAW 1. The criteria for a service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty in the United States Army from March 1970 to October 1971. The Veteran was awarded the Vietnam Service Medal, Army Commendation Medal, Purple Heart, and Gallantry Cross with Palm, among other decorations, for his honorable and courageous service. These matters were most recently before the Board in May 2020. At that time, the Board remanded the appeal to obtain addendum opinions. These opinions were obtained in June and August 2020. See June and August 2020 VA opinions. The appeal has returned to the Board for further appellate consideration. The Veteran seeks service connection for right shoulder and back disabilities. He contends that both disabilities arose from the incident for which he was awarded the Purple Heart. Specifically, the Veteran contends that while stationed in Vietnam, he was unloading artillery rounds when a mortar came through the roof of the barracks resulting in shrapnel being lodged in his body. He maintains that that doctors in service told him that they were unable to remove all of the shrapnel from his body and that it would likely continue to cause him pain due to nerve damage. He further contends that he has experienced pain in the right shoulder and back since service and that he has to take pain medication nightly for the conditions. See Veteran’s October 2012 statement to VA. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed as having right shoulder arthritis and degenerative joint disease of the lumbar spine. See September 2019 Arm and Shoulder and Back Conditions Disability Benefits Questionnaires (DBQs), respectively. Thus, Shedden element number (1), evidence of a current disability, has been met with respect to the right shoulder and low back. Concerning Shedden element number (2), evidence of inservice disease or injury, the Veteran’s military personnel records confirm service in the Republic of Vietnam and receipt of a Purple Heart. Thus, considering the place and circumstances of the Veteran’s service and his service records, his injury from a mortar round during in service is conceded. 38 U.S.C. §§ 1154 (a),(b). Thus, the determinative factor with respect to the Veteran’s claims is whether there is a nexus between the in-service mortar round injury and his current right shoulder and low back disabilities. There are several VA opinions that are against the claim. In June 2015, the Veteran underwent VA examination for the right shoulder and back. The VA examiner indicated that the Veteran had no current diagnosis in the right shoulder and diagnosed him with lumbosacral strain of the back. The VA examiner indicated an onset date of 1971 for the lumbosacral strain, but opined that it was less likely than not a result of any injuries incurred in service. The rationale provided was that the diagnosis of low back pain, acute myofascial strain, muscle spasm was more likely an acute event. The VA examiner then indicated that he could not offer an opinion on the etiology of the Veteran’s right shoulder complaints without resorting to mere speculation. The Board found these opinions to be of reduced probative value in evaluating the claims because the June 2015 VA examiner failed to provide adequate rationale for the conclusions and failed to adequately address the Veteran’s lay statements of having had continuous right shoulder and low back pain since service. As a result, the Board remanded the claim for additional medical analysis. In September 2019, a VA examiner opined that it was less likely than not that the Veteran’s low back and right shoulder injuries were a result of any injuries incurred in service. The VA examiner reasoned that the Veteran’s separation examination was silent for a right shoulder and low back condition/diagnosis or abnormal physical findings. Concerning the right shoulder, the VA examiner maintained that there was no indication of a shoulder injury found within the Veteran’s service treatment records (STRs) and that the mechanism of mortar injury, as described by the Veteran, had affected his neck and surrounding soft tissues, for which he is currently service connected. Overall, according to the September 2019 VA examiner, there was no evidence that the shoulder joint in and of itself was involved. The VA examiner concluded that it was most likely that the Veteran’s shoulder degenerative joint disease was due his long post-military career as an air conditioning technician which would involve repetitive use of the affected joint as well as age related changes. Finally, the VA examiner opined that the Veteran’s right shoulder disability and degenerative disc disease and facet disease of the lumbar spine had their onset in 2016, over 40 years after his active military service. The VA examiner further indicated that degenerative changes due to an acute traumatic event would not, based on current medical knowledge, appear 40 plus years after the fact. See September 2019 VA opinion. The Board found this opinion to be of reduced value in evaluating the claims because the examiner failed to discuss the Veteran’s lay testimony in the rationale provided in support of the opinions. In June and August 2020, a VA examiner provided addendum opinions in response to the Board’s May 2020 remand directives. The VA examiner noted that the Veteran’s self-report regarding the onset of the right shoulder and low back pain from the in-service mortar attack during service, and his complaints of pain since that incident. Regarding the right shoulder, the examiner noted that the right shoulder symptoms were a result of his service-connected bilateral middle radicular group radiculopathy. The examiner reasoned that the Veteran’s right shoulder degenerative joint disease and service-connected radiculopathy were not related, as the latter is a nerve condition originating in the spinal cord and did not directly involve the joints. Concerning the Veteran’s low back disability, the VA examiner opined that the Veteran had a normal x-ray of the lumbar spine in 2015 with evidence of degenerative joint disease in 2016. Thus, given the normal x-rays of the lumbar spine in 2015, it is not likely that the Veteran’s current back disability, to include nerve damage, originated in service. Overall, the VA examiner opined that it was less likely than not that the Veteran’s current back disability was related to or due to military service. After weighing all the evidence, the Board finds the greatest probative value in the VA clinician’s June and August 2020 opinions. These opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). These opinions in particular provided substantial reasoning and explanation as to why the Veteran’s right shoulder and low back disabilities were not due to his active service, to include his combat service and complaints of pain since that time. The Veteran has not submitted any competent evidence supporting his assertion that his right shoulder and low back disabilities were due to his meritorious active service. Therefore, after weighing all the evidence, the Board finds great probative value in the VA examiners’ opinions. Consideration has been given to the Veteran’s assertion that his right shoulder and low back arthritis were due to his active service, to include his combat duty. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, namely the etiology of the Veteran’s shoulder and back problems, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Arthritis is not the type of conditions that is readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests, such as x-rays, are needed to properly assess and diagnose this disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of arthritis to the extent they are identifiable by observation (symptoms such as pain), he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating arthritis. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. While the Board certainly appreciates the Veteran’s meritorious service, it is bound by the law governing service connection claims. The Veteran is encouraged to resubmit his claims with medical evidence that establishes a nexus between his right shoulder and/or low back disabilities and the mortar attack during service. As such, the criteria for service connection for right shoulder and low back disabilities have not been met, and the Veteran’s claims are denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.