Citation Nr: 21013425 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-42 758 DATE: March 9, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a lumbosacral (lumbar) spine disability is granted. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to lumbosacral spine disability, is granted. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to lumbosacral spine disability, is granted. FINDINGS OF FACT 1. The preponderance of the evidence does not show that the Veteran’s right shoulder complaints amount to a disability for VA purposes or that his complaints can be considered an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) related to his service in the Persian Gulf War (PGW). 2. The evidence is at least in equipoise as to whether the Veteran’s lumbosacral spine disability was first incurred in service. 3. The Veteran’s radiculopathy of the right lower extremity is proximately due to his service-connected lumbosacral spine disability. 4. The Veteran’s radiculopathy of the left lower extremity is proximately due to his service-connect lumbosacral spine disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for entitlement to service connection for a lumbosacral spine disability have been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1995 to September 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by a VA Regional Office (RO). By way of background, in a March 2019 decision, the Board, relevantly, denied service connection for a right shoulder disability, and remanded the remaining issues of service connection for a lumbosacral spine disability and radiculopathy of the bilateral lower extremities to the agency of original jurisdiction (AOJ) for additional development. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a February 2020 Joint Motion to Remand (JMR), in pertinent part, the right shoulder issue to the Board for further proceedings. As an aside, the JMR also addressed the rating of the Veteran’s posttraumatic stress disorder (PTSD), which the Board subsequently granted in an October 2020 Board decision. The issue is no longer on appeal here. The Board subsequently remanded the Veteran’s service connection claims for a right shoulder disability, lumbosacral spine disability and bilateral lower extremity radiculopathy in October 2020. The Board requested a new VA examination be afforded to the Veteran to evaluate the nature and etiology of his claimed right shoulder disability to include consideration of the Veteran’s service in the Persian Gulf War. The Board also requested an addendum medical opinion on the etiology of the Veteran’s lumbosacral spine disability as well as any associated radiculopathy of the bilateral lower extremities. A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Generally, service connection is established where a particular injury or disease resulting in disability was incurred during active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, special service connection rules exist for PGW Veterans. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Board notes that the Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. Accordingly, the provisions of 38 C.F.R. § 3.317 are applicable to the claims on appeal. Under that section, service connection may be warranted for a Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Gulf War. For a disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, a qualifying chronic disability means a chronic disability resulting from any of the following (or combination thereof): (1) an undiagnosed illness and (2) a medically unexplained chronic multi-symptom illness (MUCMI). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A MUCMI is one defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a MUCMI. A MUCMI means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right shoulder disability is denied. The Veteran contends that his right shoulder disability began during service and has gotten worse since service. Specifically, he contends that he hurt his shoulder doing physical training (PT) 5 days a week including pull-ups while his pack was on. He further asserts that his right shoulder disability is an undiagnosed illness under the Gulf War presumptions. As indicated above, service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a MUCMI. 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). A multi symptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multi symptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is “medically unexplained,” that is, the etiology and pathophysiology of the multi symptom illness, must be particular to the claimant’s case. Id. at 291. Here, the Veteran had active service as a rifleman in the Marine Corps during the second Gulf War. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The Veteran’s service treatment records (STRs) are silent for complaints, treatment or diagnosis specifically of a shoulder disability. The Board notes, however, there are some complaints of generic joint pain. In April 1999, for example, the Veteran indicated he had swollen and painful joints. This was not specific to the Veteran’s right shoulder and, indeed, the Veteran’s complaints seemed to be pertaining to his back, legs, and feet. The Veteran’s 2004 separation examination noted no health concerns. After service, the Veteran was first seen complaining of shoulder related pain in September 2015, over a decade after service. At that time, a September 2015 medical treatment note indicated the Veteran reported that he injured his shoulder at work while lifting. The medical impression at the time was that the Veteran had suffered a shoulder/rotator cuff sprain. A December 2020 VA examination indicates the Veteran does not currently have a diagnosis for his right shoulder condition. His complaints of “pain,” moreover, was not accompanied by any objective indicators of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In particular, the examiner noted no limitation of motion and no reported occupational interference. The examiner also found no evidence of persistent and/or recurrent symptoms through the years that would warrant an “undiagnosed” illness for purposes of 38 C.F.R. § 3.317. The examiner remarked that the Veteran had “no objective findings to support a diagnosis of the claimed right shoulder condition” and that the etiology and pathophysiology are nonetheless partially or fully understood for the Veteran’s right shoulder disability. He explained there was no weakness, no pain, no joint swelling, stiffness, nor was there tenderness on palpation. He further noted diagnostic testing of the Veteran’s right shoulder revealed no fracture or other significant bone, joint or soft tissue abnormality. The examiner also noted that there was “no radiographic evidence of arthritis”. In addition, the examiner remarked that any right shoulder injury that may have occurred in service and was not reported “was acute only” since there was no chronicity of care and symptoms “are subjective only”. Thus concluding, the Veteran’s right should condition was not etiologically related to service. The Board finds that the medical evidence of record and the December 2020 VA examination taken altogether provide an adequate basis upon which to render a decision. The Board attaches significant probative value to the VA examiner’s opinion, when read in conjunction, as it was well-reasoned, detailed, consistent with other evidence of record and included consideration of the Veteran's pertinent medical history and Gulf War service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board recognizes that the Veteran believes his right shoulder condition began in service and that it establishes that any current symptoms had their onset in service. In light of the Veteran’s combat service, the Board has also considered the Veteran’s lay statements in the purview of that service. See 38 U.S.C. § 1154(b) (indicating that where a veteran who has engaged in combat with the enemy in active service… the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran). In this case, however, the Veteran is not contending he injured his shoulder during combat with the enemy. He contends he hurt his shoulder during a physical training exercise. The Board has thus considered these statements, but in light of the lack of a current diagnosis, the lack of in-service complaints, the lack of persistent and recurrent complaints after service and for over a decade thereafter, the Board finds the medical evidence and opinions obtained to be more persuasive. Again, the Board notes that the Veteran’s report of in-service right shoulder pain, even if not documented, were explained by the December 2020 VA examiner to be acute only and subsided with no chronicity of care. Furthermore, the Veteran’s post service medical records indicate the Veteran injured his shoulder while lifting at his place of employment in 2015, over a decade after separation from service. At no point has the Veteran's reported symptomology manifested to a degree of 10 percent or more. Under the relevant diagnostic criteria, a 10 percent rating for a shoulder disability requires evidence of degenerative arthritis established by diagnostic testing or limitation of motion for the arm at shoulder level for the lowest disability rating of 20 percent. 38 C.F.R. § 4.124a, Diagnostic Code 5003, 5201. There is no evidence of arthritis nor limitation of motion. In fact, upon range of motion testing and diagnostic imagining performed during the December 2020 VA examination, the Veteran’s range of motion was noted as normal (or full) and testing revealed no evidence of arthritis nor any other bone or joint abnormality. Accordingly, as the Veteran’s right shoulder condition (1) has not been diagnosed, (2) has not resulted in “functional impairment of earning capacity,” (3) was not found incurred in service or caused by service or “at least as likely as not” due to service, (3) was not found to be an undiagnosed illness because of the lack of persistent and recurrent symptomatology resulting in an impairment to a degree of 10 percent, and (4) has both the etiology and the pathophysiology that are at least partially understood, the Board finds no provision in which service connection can be granted. The Board has considered every possible provision of law, but none would allow for service connection of a right shoulder condition in this case. See generally Combee v. Brown, 34 F.3d at 1042. As outlined above, the preponderance of the evidence is against the claim. Entitlement to service connection for a right shoulder disability is not warranted. 2. Entitlement to service connection for a lumbosacral spine disability The Veteran contends that he injured his back during service. Specifically, the Veteran asserts that he was exposed to dysentery and nearby explosive blasts while carrying heavy equipment during the war in Iraq. Furthermore, he contends he also injured his lower back as the result of physical training (PT) and hiking every day which has continued to bother him since service. The Veteran’s STRs contain several notations of complaints of low back pain. In April 1999, the Veteran was treated for a pulled muscle in his back and he reported a history of a back spasm in December 1998 after hiking that lasted 2 to 3 weeks. His May 2003 post-deployment questionnaire also noted stiff or painful joints, to include back pain and muscle aches. There was never a specific diagnosis rendered during service, however, and the Veteran has never contended he injured his back specifically during combat with the enemy. Treatment was noted throughout as including only rest and pain-relieving medication. The Veteran’s 2004 separation examination did not contain any reports or complaints of low back pain. After service, the Veteran filed his claim for a back condition in 2014 and a 2016 MRI confirmed multilevel lumbar spine disc disease. Treatment records thereafter consistently show diagnoses of degenerative disc disease (DDD), degenerative joint disease (DJD), spinal stenosis, annular tear, and back arthritis. In other words, it is undisputed that the Veteran has a current diagnosis of the lumbar spine. The pertinent inquiry here then is whether the Veteran’s current diagnosis is related to his in-service complaints and treatment for low back pain throughout service. At the outset, the Board finds that the provisions of 38 U.S.C. § 1154(b), known as the combat presumption apply and resolves every reasonable doubt in favor of the Veteran therefore, entitlement to service connection for a lumbar spine disability is granted. In making this determination, the Board is aware that the evidentiary records contain two VA medical opinions, which weigh against the Veterans claims. In that respect, the Veteran was afforded a VA examination for his lumbar spine disability in February 2017. At which time the examiner opined that the Veteran’s disability was less likely than not incurred in or caused by the lumbar strain he suffered as documented in STRs. The examiner explained “lumbar strain may not necessarily cause degeneration of the lumbar spine”. The Veteran was afforded another VA examination in December 2020, at which time the examiner noted the diagnosis of degenerative arthritis of the spine with intervertebral disc syndrome. The examiner also noted bilateral lower extremity radiculopathy with a date of diagnosis in 2016. During the examination, the Veteran reported the onset of symptoms in 1996 with current symptoms of popping pain with occasional tingling, burning and numbness that radiates down to both legs. The Veteran reported experiencing no flare ups with no treatment other than over the counter medications. Lastly, the Veteran reported difficultly with putting his shoes on as a result of his low back pain. The examiner ultimately opined that the Veteran’s “lumbosacral spine disability was less likely than not incurred in or caused by any event, disease, or injury during service”. He explained that the reports of low back pain/strain during service were “acute only for which he [was] evaluated and treated with no permanent residual disability shown at separation time”. The examiner further noted that “the Veteran's c-file lacks objective medical evidence to confirm the veteran's lumbar spine disability is etiologically related to service or manifested within one year of separation” referencing that there is evidence of a lumbar strain in 2016 and an MRI of a lumbar spine on May 19, 2016, “many years after military service” therefore, a nexus could not been established. Nonetheless, the Board finds the VA medical opinions of record to be inadequate for adjudicative purposes and therefore will be given little probative weight. The February 2017 examiner’s opinion is speculative in nature with the use of the phrase “may not necessarily cause” in his rationale for a negative nexus opinion. As such, this medical opinion is of no probative value. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006) (stating that speculative medical opinion as to causation cannot establish medical nexus to service). The Board also finds the December 2020 examiner’s opinion to be inconsistent with the Veteran’s statements focusing only on the lack of chronicity as well as being conclusory in nature. As such, this examination is to be given little probative weight. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn’t find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). Specifically, throughout the Veteran’s claim for entitlement to service connection for a lumbar spine disability, he has consistently reported his symptoms began in service as the result of both PT as well as experiencing explosions and carrying heavy equipment during the war in Iraq. The December 2020 examiner noted that the Veteran’s in-service back injuries were “acute only”. However, in his medical opinion, the only rationale provided was that post separation, there was only evidence of a lumbar strain in 2016 with corresponding MRI in May 2016, many years after service. The examiner did not fully consider the presence of the Veteran in a combat zone in which he reported suffering low back injuries while carrying heavy equipment with nearby explosions, nor is there a reference to the several reports of back and muscle pain during service as noted in STRs. The examiner did not provide a through rationale addressing these many contentions nor is the Board convinced the examiner fully considered the Veteran’s experience serving in a combat zone. As such, the Board gives the December 2020 VA medical opinion little probative value for it finds the medical opinion is conclusory and lacks adequate supporting rationale. See Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007). However, even with an absence of an adequate medical opinion, the Board finds that a remand is not necessary for there is adequate evidence on record to grant service connection for the Veteran’s lumbar spine disability. As indicated earlier, the Veteran had active duty service as a rifleman in the Marine Corps during the second Gulf War. For his service, the Veteran was awarded the Combat Action Ribbon for service in Kuwait and Iraq along with the Gulf War on Terrorism Expeditionary Medal among others. As such, the Board must consider the Veteran’s lay statements in the purview of that service. See 38 U.S.C. § 1154(b). Section 1154(b) is an evidentiary mechanism which permits veterans who have engaged in combat to effectively establish the incurrence or aggravation of a disease or injury in service by lay or satisfactory evidence of service incurrence or aggravation, even though there is no official record of such incurrence or aggravation in service. 38 U.S.C. § 1154(b). See also 38 C.F.R. § 3.304(d) (“Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation.”). This relaxed evidentiary burden is based on the recognition that official records documenting proof of service connection during combat situations may be unavailable or nonexistent. See Maxson v. Gober, 230 F.3d 1330, 1332 (2000). Here, the Board has taken the Veteran’s assertions that he injured his back during combat as true even though there is no official corroborating record. The Veteran is certainly competent to attest to his experiences during active duty service as well as to his symptoms. Also, there is nothing in the record to indicate the Veteran’s assertions are not credible. His STRs document several reports of injuries to his lower back during service and his MOS as a rifleman in the Marines is consistent with the Veteran’s assertions that he carried heavy equipment. The Veteran’s military awards further confirm that he served in a combat zone and likely experienced explosive blasts while serving in Iraq. Furthermore, the medical evidence of record establishes that the Veteran has a current lumbar spine disability. The Federal Circuit has held that the presumption found in 38 U.S.C. § 1154(b) applies to not only the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). At a minimum, the Veteran’s lay assertions in light of his combat service place the evidence in relative equipoise. Thus, entitlement to service connection is appropriate and the claim is granted. 3. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to lumbosacral spine disability, is granted. 4. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to lumbosacral spine disability, is granted. The Veteran contends that his bilateral radiculopathy of the lower extremities is caused or aggravated by his current lumbar spine disability. To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). As indicated above, the Veteran is now currently service connected for a lumbar spine disability. Therefore, as discussed in greater detail below, service connection for the Veteran’s bilateral radiculopathy of the lower extremities is warranted on a secondary basis. In December 2020, the Veteran was afforded a medical examination along with an addendum opinion for his lumbar spine disability. The examiner noted the Veteran’s 2016 diagnosis of radiculopathy as well as the Veteran’s reports of occasional tingling, burning and numbness that radiates to both legs. The examiner opined that the Veteran’s radiculopathy of the bilateral lower extremities was less likely than not incurred in or the result of service. However, the examiner also opined that the Veteran’s radiculopathy was “proximately due to or the result of the lumbar spine disability”. The examiner explained that current medical literature indicates that lumbar conditions, especially where there is compression of the spaces in the lower vertebrae, produce radiculopathy in the lower extremities. Based on the above, the Board finds that the preponderance of the evidence warrants entitlement to service connection on a secondary basis for the Veteran’s bilateral radiculopathy of the lower extremities. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.