Citation Nr: 21014120 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-41 007 DATE: March 11, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease (DDD) and lumbar spondylosis, is denied. REMANDED 2. Entitlement to service connection for a right shoulder disability, to include right shoulder degenerative joint disease (DJD), intermittent impingement, and rotator cuff tendonitis, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a lumbar spine disability, to include DDD and lumbar spondylosis, began during active service, manifested within one year following service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, to include DDD and lumbar spondylosis, is not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1997 to July 2001. The Veteran was afforded a video hearing in front of the undersigned Veterans Law Judge on March 21, 2019. A transcript of that hearing is in the file. The within claims were denied, along with a claim for entitlement to service connection for a bilateral hernia, in an August 2019 Board of Veterans’ Appeals (Board) decision. In July 2020, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Partial Remand (JMPR), which was granted by the United States Court of Appeals for Veterans Claims (Court) later in the same month, remanding the within matters for readjudication. The matters are again before the Board. The parties stated that remand was warranted because the Board erred by failing to satisfy the duty to assist when it relied on an inadequate March 2018 VA examination report regarding the Veteran’s right shoulder disability, and by providing an inadequate statement of reasons or bases regarding both issues in question. Specifically, the parties found that when assessing etiology, the March 2018 examiner did not specifically address the Veteran’s contention that he injured his right shoulder from loading heavy missiles and equipment and instead only addressed whether the Veteran’s right shoulder DJD was caused by an in-service fall. Although noting that traumatic arthritis is more commonly found in the glenohumeral joint than the acromioclavicular (A/C) joint, and that arthritis in the A/C joint is more commonly associated with age and overuse, the examiner did not address whether the Veteran’s heavy lifting duties while in service caused or contributed to his condition from overuse of the A/C joint. Thus, the parties stated that remand is warranted for a new examination or clarifying opinion addressing whether the Veteran’s account of wear and tear on his right shoulder during service from lifting heavy equipment caused or contributed to his DJD from overuse of the A/C joint. Additionally, the parties found that the Board failed to provide a proper foundation for its negative credibility determination regarding the Veteran’s allegations of right shoulder pain and back pain because they were not supported by contemporaneous medical records. Specifically, the parties found the Board relied on the Veteran’s failure to complain about his shoulder and back problems during medical visits in 2008 and 2009 for knee pain as evidence against the Veteran’s contention of ongoing shoulder and back problems since leaving active duty. Therefore, the parties determined that remand was warranted for the Board to provide adequate reasons and bases for its credibility determination for both issues presently before the Board. Pursuant to the July 2020 JMPR, the Board shall readjudicate the Veteran’s claim for service connection for a lumbar spine disability and remand he claim for service connection for a right shoulder disability for a clarifying opinion or new examination. 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease, such as arthritis, is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a 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; 38 C.F.R. §§ 3.307, 3.309(a). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine DDD, to include lumbar spondylosis, is due to loading bombs, missiles, and guns onto aircrafts while he was in service with the Marine Corps. At the March 2019 hearing, the Veteran testified that he had chronic back pain since 2000 and that he had received treatment for this disability following service discharge. He expressed his belief that the job he performed in service, which involved repetitive motion, caused his lumbar spine disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a lumbar spine disability. The reasons follow. In March 2018, the Veteran was diagnosed with lumbar spine DDD. Thus, there is evidence of a current disability and the first element of a service-connection claim is met. As to an in-service disease or injury, while in the Marine Corps, the Veteran served as an Ordnance Technician. He stated that as part of his duties, he would manually lift bombs, missiles, and guns daily. The Board concedes he had to manually lift equipment onto aircrafts during service. Additionally, in the May 2001 Report of Medical History, the Veteran reported occasional low back pain that did not affect duty or activity. Thus, the second element of a service-connection claim is met. Regarding a nexus to service, the Board finds the preponderance of the evidence is against a nexus. For example, the Veteran’s May 2001 separation examination report shows that clinical evaluation of the spine and other musculoskeletal system was normal. The Veteran was seen in January 2008 for a physical examination. The examiner noted that the Veteran “feels well with minor complaints.” The examiner documented the Veteran reported exercising five days a week, having a good energy level, sleeping well, and having a normal appetite. The examiner then wrote, “Additional complaint” and added, “Knee pain.” The Veteran reported the knee pain had been “occurring in an intermittent pattern for years. The course has been recurrent (only occurs when he runs).” (All upper case omitted.) When performing a review of systems, the examiner addressed the musculoskeletal system and wrote knee pain and swelling and then wrote, “Not Present – Joint Pain.” This shows that the Veteran was not complaining of other joint pain, including the lumbar spine. Two positive findings within the review of systems were the same two medical complaints that the examiner had documented based on the Veteran’s concerns regarding a possible hernia and knee pain. The Board finds that the Veteran’s failure to discuss ongoing or intermittent low back pain at the time of his physical examination in January 2008 to be indicative of his not having such symptom, as he had the wherewithal to report intermittent knee pain. The Veteran was presenting for a physical examination, where the purpose is to address one’s overall health. In such circumstances, it is logical to assume that the Veteran would report medical concerns he was having or experiencing, since he reported ongoing left knee pain and expressed concern about whether he had a hernia. In other words, the Board finds that if the Veteran was experiencing ongoing lumbar spine pain, he would have reported it. At this point, it had been more than six years since service discharge, and the Veteran was not reporting intermittent or ongoing low back pain, which is evidence against ongoing low back pain in the years following service discharge. The Veteran was seen again in April 2008 for left knee pain, which the examiner noted the Veteran had been experiencing such pain for six months. The examiner noted the Veteran was an “avid athlete, youth director, plays basketball, baseball.” When addressing the past medical history, the examiner wrote, “Past history has been reviewed[,] and he has no contributory medical problems,” which shows that the Veteran was not reporting other medical issues at that time, including low back pain. The doctor noted that he would enroll the Veteran in a therapy program for range of motion and strengthening exercises. The Veteran was seen again in May 2008, June 2008, and July 2008 with left knee complaints. In the July 2008 record, the physician noted that the Veteran was at camp that weekend and “pushed pretty hard with [his knee] and it got sore again.” The physician wrote that the Veteran needed to make sure he was not getting back to “aggressive activities too soon.” Thus, the Veteran was being active at this time and was not reporting low back pain while reporting the left knee pain. A May 2009 medical record shows the Veteran went to see an orthopedic surgeon for his left knee. When addressing the Veteran’s past medical history, the physician wrote, “He is otherwise healthy.” A February 2011 private medical record shows that the Veteran was seen for pain in the left groin and testicle, which he reported had been occurring in an intermittent pattern for six months. This would be another medical symptom that the Veteran had been experiencing for a six-month period where he sought treatment for such symptom, which is consistent with his seeking treatment after having ongoing symptoms involving his left knee. The Veteran also reported a sore throat and ear pain at that time. These treatment records show the Veteran was capable of identifying, reporting, and seeking treatment for pain and medical problems as necessary, which did not include low back symptoms or problems. Although the parties within the JMPR indicated that the Board failed to explain why the Veteran would reasonably have been expected to report his back symptoms to medical providers “during his 2008 and 2009 medical visits for knee pain,” this characterization misrepresents the nature of the Veteran’s January 2008 treatment. The January 2008 treatment record documents that the Veteran was seen for a physical exam. It included a comprehensive review and/or examination findings of the Veteran’s body systems, including reviews of the skin; head, eyes, ears, nose, and throat; neck; respiratory system; cardiovascular system; gastrointestinal system; male genitourinary system; musculoskeletal system; and psychiatric findings. As stated above, it would be expected and entirely appropriate for the Veteran to report any low back issues he was experiencing. At the time of the January 2008 medical record, the Veteran was not being seen by a knee specialist strictly for the purposes of addressing his knee pain. It is clear that the Veteran knew this because the physician noted that the Veteran stated that he was “concerned about having a hernia.” Additionally, he was assessed with “symptoms concerning nutrition, metabolism, and development, abnormal weight” and was prescribed a hormone and referred for bloodwork. Given the comprehensive nature of the January 2008 treatment and the Veteran’s demonstrated capacity for identifying and reporting his medical problems, it is reasonable to conclude that the Veteran would have reported ongoing low back symptoms if he was experiencing them at that time. Although the Veteran was seen by orthopedic specialists specifically in relation to knee pain in April 2008 and May 2009, the notations that the Veteran was “otherwise healthy” and had no contributory medical problems indicates that the Veteran was questioned and given the opportunity to report other medical issues and/or symptoms so that the specialists would be able to consider any contributory causes to the Veteran’s knee pain for treatment consideration. The general findings in the May 2009 report are comprehensive and not knee specific, as the examiner addressed the Veteran’s medications, allergies, social history, and past surgery for bilateral hernia repair. Given the potential for low back pain to be a related or precipitating factor to knee issues, it would make sense for the orthopedic specialists to be interested in any low back symptoms and for the Veteran to report any symptoms he was experiencing at that time. Although the Veteran reported multiple medical issues during medical treatment in 2008 and 2009, there is no documentation that he was experiencing low back pain during this time period despite having several opportunities to report such symptoms, since he reported multiple other medical complaints, such as a hernia, left knee pain, left groin/testicle pain, sore throat, and ear pain. As such, these treatment records are probative evidence showing the absence of concurrent low back pain symptoms. The Veteran was afforded a VA examination in February 2013. The examiner reviewed the Veteran’s claims file, as well as conducted an in-person examination. The Veteran told the examiner that his back had hurt for 10 years but he first saw a private doctor for it two weeks prior. The Veteran stated he never reported his back issues while he was in service. The examiner concluded that the Veteran did not have a current lumbar spine disability. Furthermore, the images of the Veteran’s lumbar spine appeared to be normally aligned. The examiner did not provide a medical opinion as there was no lumbar spine disability present to address an etiological opinion. The fact that the Veteran did not have a lumbar spine disability more than 10 years after service is further evidence against a finding that the current lumbar spine disability had its onset in service. In March 2018, the Veteran was afforded another VA examination. The examiner reviewed the Veteran’s file, as well as conducted an in-person examination. The examiner concluded that the Veteran’s in-service back complaints, evaluations, and treatments were temporary conditions (the examiner acknowledged that the Veteran complained of occasional low back pain at service discharge), and that such did not support a chronic lower back condition, but rather short-lived temporary conditions. The examiner noted that radiographic changes in the Veteran’s spine were most consistent with degenerative changes and bone spur formation, rather than trauma, especially since there is no history of immunological or inflammatory diseases. The examiner noted that if the current lumbar spine disability were related to military lifting and use, then there would be more arthritic changes or spur formation related to the increased stress of heavy lifting prior to the DDD condition; however, he noted that this was not found. The examiner concluded that the Veteran’s lumbar spine DDD is more likely than not caused by degenerative changes of aging and is less likely than not related to the Veteran’s military service. In March 2019, the private doctor who performed the Veteran’s right shoulder surgery opined that the Veteran had a history of chronic back pain, which more likely than not resulted from his daily operations in the Marine Corps and contributed to his present diagnosis. The Board finds the medical opinions provided in March 2018 VA examination report and March 2019 letter are competent. However, it finds that the March 2019 private opinion is of lessened probative value than the March 2018 VA opinion. In the March 2019 private opinion, there is no information on what the doctor used to help formulate the conclusion that the Veteran’s lumbar spine disability is caused by his Marine Corps occupation. The March 2018 VA examiner listed the evidence that was in the Veteran’s claims file and acknowledged that the Veteran complained of occasional low back pain at service discharge. The examiner also provided a detailed rationale for why he concluded that the current lumbar spine disability was not related to the Veteran’s occupation in service. The VA examiner also cited to medical websites to support his conclusion. Additionally, the opinion from the private doctor in March 2019 does not contain a rationale; without this, the Board finds the March 2019 private opinion to be inadequate. In reviewing the evidence as a whole, the preponderance of the evidence is against a finding that the current lumbar spine disability had its onset in service. Again, the clinical evaluation of the spine at service separation was normal. When examined in 2013, which is more than 10 years following service discharge, a medical professional found that the Veteran did not have a current lumbar spine disability, which shows that he did not have arthritis in service or within one year following service discharge. This is evidence against a nexus to service. Additionally, without evidence of arthritis within one year of service discharge, service connection is not warranted on a presumptive basis for a chronic disease. The Board acknowledges the Veteran’s assertions that his lumbar spine disability is related to active service. However, to the extent that the Veteran attempts to assert a nexus between his lumbar spine disability and his occupation during service, he is not competent to directly link the DDD and lumbar spondylosis to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Hence, while the evidence shows that the Veteran has lumbar spine disability, to include DDD and lumbar spondylosis, the preponderance of the evidence is against a finding that his current lumbar spine disability is related to service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 2. Entitlement to service connection for a right shoulder disability, to include right shoulder DJD with intermitted impingement Within the JMPR, the parties stated that, when assessing etiology, the March 2018 examiner did not specifically address the Veteran’s contention that he injured his right shoulder from loading heavy missiles and equipment and instead only addressed whether the Veteran’s right shoulder DJD was caused by an in-service fall. Although noting that traumatic arthritis is more commonly found in the glenohumeral joint than the A/C joint, and that arthritis in the A/C joint is more commonly associated with age and overuse, the examiner did not address whether the Veteran’s heavy lifting duties while in-service caused or contributed to his condition from overuse of the A/C joint. Thus, remand is warranted for a new examination or clarifying opinion addressing whether the Veteran’s account of wear and tear on his right shoulder during service from lifting heavy equipment caused or contributed to his DJD from overuse of the A/C joint. The matter is REMANDED for the following action: Return the claims file to the VA physician who conducted the March 2018 VA examination in relation to the Veteran’s right shoulder disability claim, and request that he re-review the claims file and all new evidence received since the time of the March 2018 evaluation, and respond to the below inquiry regarding the Veteran’s disability picture. If the March 2018 VA physician deems that an in-person examination is necessary, schedule the Veteran for a new VA examination to assist in determining the etiology of his right shoulder disability. If the physician who provided the March 2018 VA examination is not available, a new examination should be provided. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty in the United States Marine Corps from July 1997 to July 2001. • The Veteran alleges that he injured his right shoulder from repeatedly loading heavy missiles and equipment onto aircrafts during his period of active duty. • A December 1997 service treatment record shows the Veteran fell and hit his right “side,” which scraped his knee and right hand. See VBMS entry with document type, “STR – Medical,” receipt date 09/19/2001, p. 56. • The May 2001 Report of Medical Examination performed at separation shows that clinical evaluation of the upper extremities was normal. See VBMS entry with document type, “STR – Medical,” receipt date 09/19/2001, p. 65 (item 35). • The corresponding May 2001 Report of Medical History shows the Veteran denied a history of painful or “trick” shoulder. See VBMS entry with document type, “STR – Medical,” receipt date 09/19/2001, p. 61 (item 11, second column). • Private treatment records dated from January 2008 to February 2011 do not show that the Veteran complained of right shoulder pain or symptoms and denied joint pain except for left knee pain. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 11/05/2012. • A February 2013 VA examination report shows the examiner found that the Veteran did not have an injury to the muscle group of the shoulder girdle or arm, which included Muscle Groups I – VI. See VBMS entry with document type, “VA Examination,” receipt date 02/04/2013, p. 63. • A February 2013 VA x-ray of the right shoulder shows the examiner found on the impingement radiographs of the right shoulder, there is no significant osseous or joint abnormality. See VBMS entry with document type, “CAPRI,” receipt date 06/16/2016, p. 318. • A September 2014 VA MRI of the right shoulder without contrast shows degenerative changes at the acromioclavicular joint with inferior spurring causing narrowing of the subacromial space, and no labral tear was identified. See VBMS entry with document type, “CAPRI,” receipt date 06/16/2016, p. 318. • A March 2018 VA examination report shows the examiner diagnosed right shoulder acromioclavicular joint degenerative joint disease with intermittent impingement. See VBMS entry with document type, “C&P Exam,” receipt date 03/28/2018. • In a separate March 2018 entry, the examiner concluded that it was not at least as likely as not that the Veteran’s degenerative joint disease of the right shoulder was incurred by the fall he sustained in service. See VBMS entry with document type, “C&P Exam,” with “Medical Opinion” in the subject field, receipt date 03/28/2018. • The March 2018 opinion did not include a finding by the examiner of whether the Veteran’s account of wear and tear on his right shoulder during service from lifting heavy equipment caused or contributed to his degenerative joint disease in the right shoulder from overuse of the right acromioclavicular joint. • Private treatment records show the Veteran was diagnosed with a possible labral tear in the right shoulder in 2018 and underwent an arthroscopy surgery on the right shoulder in January 2019. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 03/20/2019. • The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to address whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s account of wear and tear on his right shoulder during service from lifting heavy equipment caused or contributed to his degenerative joint disease in the right shoulder from overuse of the right acromioclavicular joint. Please state upon what facts and medical principles the opinion is based. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.