Citation Nr: 21013903 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-13 422 DATE: March 10, 2021 ORDER Service connection for a right shoulder disability is denied. Service connection for a low back disability is denied. FINDINGS OF FACT 1. The evidence is insufficient to show that the Veteran has a current diagnosed right shoulder disability that is at least as likely as not related to his active military service. 2. The evidence is insufficient to show that the Veteran has a current diagnosed low back disability that is at least as likely as not related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right 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 low back disability have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1991 to March 2001, and in the U.S. Air Force Reserve from October 2001 to July 2002 and March 2003 to August 2003. The matter is on appeal from an April 2010 rating decision. The Board has previously remanded the issues twice for further development, once in April 2018 and once in March 2020. The requested development has been completed, and the issues have returned to the Board for further adjudication. Service Connection 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 may also be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Right Shoulder The Veteran asserts that he has a right shoulder disability that is related to his active military service. A review of the Veteran’s service treatment records (STRs), reflects that the Veteran reported pain in his right shoulder while using a fire hose to fight a fire in February 1994. He had full range of motion of his right shoulder, and no deformities were present. There was slight tenderness to the posterior shoulder. The Veteran was assessed with a right shoulder strain. He was placed on a temporary profile from February 14, 1994 through February 18, 1994, during which time he was restricted from lifting or holding a fire hose, and climbing or crawling until the release date. In March 2011, a statement from the Veteran’s wife was submitted, in which she reported that the Veteran started having right arm numbness and shoulder pain in August 2009, and that it had been a chronic issue. She relayed that the Veteran had not been able to lift much with his arm since August, and that he had trouble moving his right arm above his shoulder. She noted that the Veteran had been complaining about a stiff neck the week prior to when he began experiencing right arm numbness and shoulder pain. She relayed that while the Veteran had been in the service, he had multiple injuries to his back, neck, and right shoulder. She reported that the Veteran had been told by a neurologist at VA that he had degenerative arthritis of the cervical spine with associated right C-7 radiculopathy. The Board notes that the record reflects that the Veteran’s wife is a registered nurse. Additionally, the Veteran is service-connected for a cervical spine disability and a right C-7 radiculopathy. The Veteran submitted a personal statement in April 2011, in which he reported that after his separation from active duty, he did not seek treatment for various medical issues because it was not a high priority as he was going to school, living on a limited income, and had children. In addition, he noted that when he had been on active duty, he had stockpiled ibuprofen, which he did not run out of until late 2008. He relayed that his exit physicals did not say much about his issues, because he had a large amount of pain killers and did not place a high priority on aches and pains at the time. He stated that he did not then understand the extent of his pain and how much he relied on the ibuprofen. The Veteran was provided with VA examinations in September 2009, October 2019, and July 2020. At the September 2009 VA examination, the VA examiner noted the Veteran to have a diagnosis of chronic right shoulder strain. A VA medical opinion was rendered in January 2010, in which the VA examiner found that the Veteran’s chronic right shoulder strain was not caused by or a result of his active military service. The examiner rationalized that there was no documentation of ongoing medical treatment for the condition after the Veteran’s release from active military service. Additionally, a post-deployment physical from 2003 did not list the disability as an ongoing or chronic problem. At both the October 2019 and July 2020 VA examinations, both VA examiners found that the Veteran did not have a diagnosis for a right shoulder disability. At the October 2019 VA examination, the VA examiner reported that they had considered the Veteran’s full record, to include the February 1994 diagnosis of right shoulder strain, the September 2009 report of painful motion and stiffness with flare-ups every few weeks, and the Veteran’s wife’s July 2010 statement indicating her observation of chronic right shoulder pain. The examiner also noted the consideration of the Veteran’s lay statements regarding in-service incurrence and continuity of symptomatology. The examiner found that the Veteran did not have a medically diagnosed right shoulder or trapezius condition at this time. There was no clinical evidence or diagnosis to support a chronic diagnosis of right shoulder or trapezius strain. The examiner rationalized that while there was a record of treatment in the service for an acute injury/strain to the Veteran’s right shoulder in February 1994 and right trapezius in April 2000, there was no evidence showing permanent residual or chronic disability subject to service connection. The examiner explained that the resolution of the strains was supported on the Veteran’s post-deployment assessments from September 1999, May 2000, and October 2003. As well as on his reserve component health risk assessments from July 2002 and March 2003, and his separation physical exams from January 2001 and July 2003. Additionally, there was no medical evidence to support a chronic right shoulder or trapezius strain within a year of discharge. The examiner relayed that medical literature supports that an acute strain usually resolves with no residuals within several weeks. The examiner noted that the Veteran had subjective complaints of pain in his right shoulder region, and that he had stated that he has increased pain with throwing activities. This was the Veteran’s subjective perception of his function during a flare up, which had not been verified by a health care provider. The examiner explained that pain is a subjective finding, and in the absence of objective pathology has low sensitivity and specificity for pathology. Subjective complaints in the presence of no objective clinical findings, are not a high value reliable symptom. Range of motion is under the Veteran’s voluntary control and is dependent on their willingness to engage in the activity. Decreased range of motion in the absence of other abnormal findings has low reliability when an underlying pathological process has not been identified. The statement presented by the layperson, was unsubstantiated by medical records of evidence. The examiner noted that laypersons are not competent to render testimony concerning medical causation. The Board notes that the Veteran’s statements may be considered lay statements, however, the evidence of record reflects that the Veteran’s wife is a registered nurse, suggesting she has some level of medical training and expertise. Thus, based on the available medical evidence, including the September 2009 VA shoulder exam and the October 2019 VA shoulder exam, the examiner found that the Veteran’s right shoulder strain and right trapezius strain had resolved with no residual or functional limitations. Since a chronic right shoulder condition was not evident at this time, a right shoulder and right trapezius condition was less likely than not related to the Veteran’s active military service. At the July 2020 VA examination, the VA examiner found that a right shoulder disability was less likely than not related to the Veteran’s active military service. The examiner explained that there was no chronic diagnosis made for a right shoulder disability, as the objective examination was normal, and the Veteran’s symptoms were only subjective. As such, the examiner found that a nexus had not been established. A further review of the Veteran’s VA and private treatment records does not provide any findings of any greater significance than those relayed above. Based upon the foregoing, service connection for a right shoulder disability is not warranted. At both the October 2019 and July 2020 VA examinations, the VA examiners found that the Veteran did not have a current right shoulder disability. While the September 2009 VA examiner did note the Veteran to have a diagnosis of chronic right shoulder strain, the examiner found that it was less likely than not related to the Veteran’s military service. Consideration is given to the Veteran’s contentions that he has a right shoulder disability that began during his active military service. However, while lay persons are competent to provide opinions pertaining to certain medical issues, the diagnosis and etiology of a right shoulder disability, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, only a limited amount of probative value may be assigned to the Veteran’s assertions, such as in his reports of symptoms and continuity. However, no probative value shall be assigned to assertions made by the Veteran of a diagnosis or as to the etiology of the contended right shoulder disability. As previously noted, the Veteran’s spouse is a registered nurse, and as such her statement garners a higher level of probative value, however, her statements pertaining to a right shoulder condition do not provide a diagnosis of a right shoulder condition other than the retelling of the diagnoses for the Veteran’s currently service-connected cervical spine condition and right C-7 radiculopathy. In addition, in her statement, the Veteran’s right shoulder condition did not begin until August 2009, which does not provide a link between a current right shoulder condition and the Veteran’s active military service. As such, the weight of the evidence is against a finding that the Veteran has a current diagnosed right shoulder disability that is at least as likely as not related to his active military service. The Board has considered whether pain alone without any underlying diagnosis may constitute a disability for purposes of service connection based on a direct basis. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “‘disability’ in § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” Id, at 1363, 1368, 1369. However, Saunders also made clear that a Veteran cannot “demonstrate service connection simply by asserting subjective pain. To establish a disability, the Veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a Veteran will need to show that his pain reaches the level of a functional impairment of earning capacity.” Id, at 1367-68. In this instance, the evidence of record does not show the Veteran to have right shoulder pain that has caused any functional impairment of earning capacity. While the October 2019 VA examiner reported the Veteran to have a decrease of 20 degrees in range of motion for abduction, that is it was 0 to 160 degrees, whereas full range of motion for abduction is 0 to 180 degrees, there was no decrease in range of motion to flexion, external rotation, or internal rotation. In addition, at the July 2020 VA examination, the VA examiner found the Veteran to have full range of motion in his right shoulder. Also, neither the October 2019 nor the July 2020 VA examiners reported the Veteran’s right shoulder to impact his ability to perform occupational tasks. A review of the Veteran’s medical treatment records does not convey any indication that the Veteran’s right shoulder pain amounts to a functional impairment on his earning capacity. As such, the Veteran’s right shoulder pain does not constitute a disability for VA purposes. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a right shoulder disability is denied. Low Back The Veteran asserts that he has a low back disability that is related to his active military service. A review of the Veteran’s STRs reflects multiple complaints from the Veteran of lower back pain. In August 1992, the Veteran reported that he fell while playing basketball. X-rays taken on August 17, 1992 showed no evidence of subluxations or fractures. A congenital closure defect was present at S1. The Veteran was assessed with a lower back contusion injury on August 30, 1992. He was placed on a temporary profile from August 20, 1992 through September 4, 1992, during which time he was restricted from running, walking long distances, lifting greater than five pounds, and stooping until the release date. In October 1992, the Veteran complained of muscle pain in his lower back after bending over to pick up a bucket. He was assessed with lumbar strain. He was placed on a temporary profile from October 2, 1992 through October 16, 1992, during which time he was restricted from heavy lifting, bending, climbing or running until the release date. The Veteran was also placed on a temporary profile for back strain from April 11, 2000 through April 26, 2000, during which time he was restricted from running, jumping, climbing, crawling, lifting greater than 20 pounds, and firing weapons. A private emergency medical treatment record from July 16, 2002, provides that the Veteran complained of mild lower back pain after being in a rolled fire truck. He reported that he was wearing a lap/shoulder restraint. He was provided with a home care instruction sheet for back pain or stiffness. In March 2011, a statement from the Veteran’s wife was submitted, in which she reported that the Veteran strained his lower back early in his military service. She relayed remembering two times that the Veteran was placed on limited duty due to lower back injuries, and that since the first injury he has had pain. She noted that there have been numerous occasions where the Veteran has had difficulty getting out of bed. She also reported that she could tell when the Veteran’s back was bothering him because he moves slow, rubs his back, and is grumpy. As relayed above, the Veteran submitted a personal statement in April 2011, in which he reported reasons for not receiving ongoing medical treatment after his separation from active duty. The Veteran was provided with VA examinations in September 2009, October 2019, and July 2020. At the September 2009 VA examination, the VA examiner noted the Veteran to have a diagnosis of chronic lumbar spine strain. A VA medical opinion was rendered in January 2010, in which the VA examiner found that the Veteran’s chronic lumbar spine strain was not caused by or a result of his active military service. The examiner rationalized that there was no documentation of ongoing medical treatment for the condition after the Veteran’s release from active military service until a VA appointment in January 2010. The Veteran’s 2003 post-deployment physical also did not list the disability as an ongoing or chronic problem. At the January 2010 VA appointment, the Veteran stated that he had chronic low back pain since his active service. There was no documentation of any other injuries to the Veteran’s lower back since his release from active duty. On an x-ray done in September 2009, there was no documentation of pathology. The examiner opined that if the Veteran had sustained an injury to his spine while on active duty, that there would most likely be evidence of degenerative changes in the spine at this time. At both the October 2019 and July 2020 VA examinations, both VA examiners found that the Veteran did not have a diagnosis for a low back disability. At the October 2019 VA examination, the VA examiner opined that while there was a record of treatment in service for an acute injury/strain to the Veteran’s lumbar spine in 1992 and a lumbar contusion in 1992, there was no evidence showing permanent residual or chronic disability subject to service connection. The resolution of these strains was supported on the Veteran’s post-deployment assessments from September 1999, May 2000, and October 2003. As well as on his reserve component health risk assessments from July 2002 and March 2003, and his separation physical exams from January 2001 and July 2003. The examiner explained that medical literature defines a contusion as a term, better known as a bruise. A contusion is an acute injury that happens when injured tissue leaks blood into the surrounding area causing dislocation. This injury resolves within one to two weeks with no residuals. Medical literature also supported that an acute lower back strain usually resolves with no residuals within several weeks. The examiner noted that the resolution of the Veteran’s low back strain was supported by the temporary physical profiles, physical assessments, and examinations while the Veteran was in the service. Additionally, there was no medical evidence to support a chronic lumbar strain within a year of discharge. The examiner reported that the radiographic findings of spina bifida occulta S1, is a common malformation of the spine. It is a congenital abnormality that occurs when the vertebra does not fully close. The severity of the malformation determines the severity or level of pain. The examiner noted that the Veteran has subjective complaints of occasional pain in the lumbar spine. The examiner reported that the statement presented by the layperson was unsubstantiated by medical records of evidence. The examiner noted that laypersons are not competent to render testimony concerning medical causation. As noted above, the Veteran’s statements may be considered lay statements, however, the evidence of record reflects that the Veteran’s wife is a registered nurse. Thus, based on the available medical evidence and the October 2019 VA examination, the VA examiner found that the Veteran’s lumbar strain had resolved with no residual or functional limitations. Since a chronic lumbar condition was not evident at this time, the VA examiner found that a back condition was less likely than not related to the Veteran’s active military service. At the July 2020 VA examination, the examiner found that a low back disability was less likely than not related to the Veteran’s active military service. The examiner explained that there was no chronic diagnosis made for a chronic back condition, as the objective examination was normal, and the Veteran’s symptoms were only subjective. As such, the examiner found that a nexus had not been established. A further review of the Veteran’s VA and private treatment records does not provide any findings of any greater significance than those relayed above. Based upon the foregoing, service connection for a low back disability is not warranted. At both the October 2019 and July 2020 VA examinations, the VA examiners found that the Veteran did not have a current low back disability. While the September 2009 VA examiner did note the Veteran to have a diagnosis of chronic lumbar spine strain, the examiner found that it was less likely than not related to the Veteran’s military service. Consideration is given to the Veteran’s contentions that he has a low back disability that was either incurred in or otherwise caused by his active military service. While lay persons are competent to provide opinions pertaining to certain medical issues, the diagnosis and etiology of a low back disability, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, only a limited amount of probative value may be assigned to the Veteran’s assertions, such as in his reports of symptoms and continuity. However, no probative value shall be assigned to assertions made by the Veteran of a diagnosis or as to the etiology of the contended low back disability. As previously noted, the Veteran’s spouse is a registered nurse, and as such her statement garners a higher level of probative value, however, her statement only provided the recollection of two strains while the Veteran was in the military, and notations of symptoms. That is, while she reported recalling two occasions that the Veteran strained his back in the military, she did not provide any current diagnosis of a back disability, nor did she provide any link between a current back condition and the two instances of strains in the military. As such, the weight of the evidence is against a finding that the Veteran has a current diagnosed low back disability that is at least as likely as not related to his active military service. As discussed above, pain alone cannot constitute a disability for VA purposes if it does not impair earning capacity. See Saunders, at 1367-68. In this instance, the evidence of record does not show the Veteran to have low back pain that has caused any functional impairment of earning capacity. While the October 2019 VA examiner reported the Veteran to have a decrease of 10 degrees in range of motion for forward flexion, that is it was 0 to 80 degrees, whereas full range of motion for forward flexion is 0 to 90 degrees, there was no decrease in range of motion to extension, right and left lateral flexion, or right and left lateral rotation. In addition, at the July 2020 VA examination, the VA examiner found the Veteran to have full range of motion in his lower back. Also, neither the October 2019 nor the July 2020 VA examiners reported the Veteran’s lower back to impact his ability to perform occupational tasks. A review of the Veteran’s medical treatment records does not convey any indication that the Veteran’s low back pain amounts to a functional impairment on his earning capacity. As such, the Veteran’s low back pain does not constitute a disability for VA purposes. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a low back disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.