Citation Nr: 21021225 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-51 147 DATE: April 12, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left hand disability is denied. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected healed fractured left radius and ulna (“left forearm disability”), is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability, variously diagnosed as degenerative joint and disc disease (DJD/DDD), was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left hand disability causing functional impairment in earning capacity at any time during or approximate to the pendency of the claim. 3. The Veteran’s left shoulder disability is not secondary to service-connected left forearm disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left hand disability are not met. 38U.S.C. §§1110, 5107;38C.F.R. §§3.102, 3.303. 3. The criteria for service connection for a left shoulder disability, to include as secondary to service-connected left forearm disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1963 to August 1963 and from September 1963 to September 1966. These matters came before the Board of Veterans’ Appeals (Board) on appeal from July 2015 and January 2017 rating decisions. In a July 2019 decision, the Board reopened the previously denied claim for service connection for lower back strain and remanded the de novo claim, as well as the claims for service connection for left shoulder and hand disabilities, for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a). 1. Entitlement to service connection for a lumbar spine disability The Veteran contends that his back disability is related to his in-service strain of his low back. Service treatment records (STRs) reflect that in February 1964, the Veteran was seen for pain in his back following lifting heavy weights. In September 1964, the clinician noted that there was no deformity and his chest was clear. He was diagnosed with skeletal pain. In September 1965, the Veteran was seen for a back strain in his lower back due to moving a footlocker. Medical notes reflect that he reported recurring low back pain once a month with swelling. X-rays of the low back were negative. The examiner noted that the Veteran had a back injury when he was eight years old with no back difficulties since the accident. Neither this injury nor a back disability was noted on the September 1963 enlistment report of medical examination. The September 1966 separation report of medical examination reflects a normal clinical evaluation for the spine. Post-service, in a February 1990 statement, the Veteran reported that he was injured while in the Army. He said that he retired from the police department for a back injury; however, he was injured in the Army and not the police department. A November 1999 chiropractic evaluation indicated the Veteran first reported to their office in 1997 complaining of back pain from an injury which occurred at work. The provider noted the Veteran was struck by a car at work in 1972 and had constant lower back pain since the injury. X-rays showed lumbar segmental dysfunction. Radiology testing from 1999 also revealed that the Veteran had degenerative changes and mild spinal stenosis. A private orthopedic consultation report dated in February 2000 revealed the Veteran had an initial injury to his back in 1972 in the course of employment as a security policeman. He was thrown from a vehicle approximately 30 feet. The Veteran reported low back pain since the accident. A magnetic resonance imaging (MRI) showed disc protrusions, spinal stenosis, and spondylosis. The doctor noted that Veteran went on early retirement in 1996 for disabilities to include chronic dorsal and lumbosacral strains with early arthritis. He was diagnosed with significant degenerative changes with some possible nerve root compression in the lumbar spine. VA treatment records from May 2001 reflect that the Veteran reported increasing back pain. He reported that his low back pain has been present since the 1960’s; however, it had been increasing over the past six years. In June 2001, the Veteran had an MRI that showed lumbar DJD and some disc bulging with mild canal stenosis. In a July 2001 statement, the Veteran reported that he was advised by a doctor of the police Disability Hearing Board in June 1986 that his back injury did not happen while on police duty and that he was injured in the military. Private medical treatment records from January 2009 reflect that the Veteran reported that his back pain began in service in 1963. In November 2012, the Veteran underwent a decompressive lumbar laminectomy at L3 through S1, lateral fusion from L3 through S1, and placement of intraspinal process cage fusion at L3-L4. The postoperative diagnosis was severe spinal stenosis at L3 through S1. A November 2019 VA examination report reflects that the Veteran has a diagnosis of DDD of the lumbar spine with lumbar fusion and laminectomy with residual range of motion loss. The Veteran reported that he picked up his footlocker and when going down the stairs, he slipped on a screwdriver and fell down the steps where he incurred a fracture of the left forearm, shoulder, and lower back injuries. He reported that the ongoing physical training further aggravated these areas during his tenure in service. He reported that he had recurring back issues after separation from service and initially started working at the post-office. He reported that he primarily had left shoulder issues then and occasional back pain. He reported that with time, the back issues progressed, and he had this evaluated by orthopedics in 2012. He underwent lumbar spine fusion in November 2012. He initially had improvements in his lower back, but still reported lower back pain. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that while STRs from February 1964 and September 1965 noted lower back pain, the September 1965 lumbar spine x-ray did not note any abnormal findings. The clinician noted that there is a lack of medical documentation after separation in 1966 to 2012 to demonstrate the low back pain complaints continued after separation from service. The MRI findings from 2012, which demonstrated DDD, likely resulted from age-related changes and were not present on x-ray from 1965. Therefore, the claimed DDD lumbar spine with lumbar fusion and laminectomy, residual ROM loss condition was less likely than not incurred in or caused by the claimed in-service events. Upon review of the evidence of record, the Board finds that service connection for a lumbar spine disability is not warranted. At the outset, the Board notes that while there was some indication in the STRs that the Veteran had a back injury at age 8, the September 1963 enlistment report of medical examination was negative for either the injury or a back disability. Additionally, the Veteran mentioned other injuries and surgeries he had prior to his enlistment and did not mention a lumbar spine injury or diagnosis. The Veteran is presumed to have been sound upon entry into service. As delineated above, the Veteran has been variously diagnosed with DJD and DDD of the lumbar spine. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the low back disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The first objective post-service treatment records show the Veteran was not diagnosed with lumbar segmental dysfunction until 1997. X-rays first revealed degenerative changes in 1999, decades after the Veteran’s separation from service in 1966 and outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of back pain since his in-service low back strain, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with reports in contemporaneous treatment records, which show that the Veteran did not seek further treatment or complain of back pain after September 1965 and the September 1966 separation examination was negative for a back disability. Moreover, the Veteran initially reported the onset of constant back pain following the 1972 work injury, which is outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms of back pain were the result of his in-service injury and manifestations of DJD and DDD, he is not competent to make this determination as the Veteran has not demonstrated the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that the complaints of constant back pain were instead attributable to an intercurrent injury to the back in 1972 as shown in the orthopedic and chiropractic notes dated in 1999 and 2000. Service connection for a low back disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s low back disability and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Based on a review of the available records and his particular expertise the 2019 VA examiner found that the Veteran’s lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the clinician noted the in-service incidents of report of pain or injury of the back from the Veteran. He explained that September 1965 radiology testing did not show any abnormal findings. This was following all of the Veteran’s reports of pain and injury. He attributed the Veteran’s current lumbar spine disability to age-related changes and noted that these lumbar changes were not seen on radiology in 1965. Thus, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board acknowledges that the November 2019 VA clinician reported that there is a lack of medical documentation after separation in 1966 to 2012 to demonstrate that low back pain complaints continued after separation from service. However, radiology testing from 1997 and 1999 revealed that the Veteran had lumbar segmental dysfunction, degenerative changes, and mild spinal stenosis. This still leaves 31 years where there is no medical documentation of a lumbar spine disability. In addition, as discussed above, the Veteran sustained a workplace injury to the back in 1972 and the reports of constant pain did not occur until the accident and DJD/DDD was not documented until the subsequent radiology reports in 1997 and 1999. While Veteran believes his low back disability is related to the in-service low back strain, he is not competent to provide a nexus opinion in this case. Jandreau, supra. In addition, the Veteran has submitted no medical opinions of record to support his contentions. Consequently, the Board gives more probative weight to the competent medical evidence. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for a lumbar spine disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left hand disability The Veteran contends that he has a left hand condition that is due to a fall in active military service. STRs are negative for reports of left hand pain or injury specifically to the left hand. These records do contain a January 1963 pre-enlistment report of medical history reflects that the Veteran had an accident when he was 17 where he fractured his left forearm and left femur. There were no complications noted. A September 1963 enlistment report of medical history notes that the Veteran had a broken arm and a subsequent operation. Both enlistment report of medical examinations reflects a normal clinical evaluation for the upper extremities. In March 1963, the Veteran sustained a left forearm fracture when he fell down the stairs. Post-service, in January 2009, private treatment records reflect that the Veteran reported pain, numbness, and diminished grip strength in his hands. Motor examination of the upper extremities showed normal mass, tone, and power throughout. The abduction of the left arm was not tested due to pain and restriction from his left shoulder. A November 2019 VA examination report reflects that the Veteran reported his in-service fall in 1963 where he fractured his left forearm (radius and ulna). The Veteran claimed that his grip in his left hand is weaker than his right hand. There was no objective evidence of a left hand condition. On examination, left hand range of motion was normal. There was no pain noted on examination. There was no functional loss. The Veteran reported functional impairment described as a weaker grip in his left hand. Muscle strength testing reveals that the left hand grip was 5 out of 5. Upon review of the evidence of record, the Board finds that service connection for a left hand disability is not warranted. The preponderance of the evidence reflects that the Veteran does not have a current diagnosis of a left hand disability and has not had at any time during the pendency of the claim or approximate thereto, a left hand disability or any symptoms that cause impairment in earning capacity. Romanowsky v. Shinseki,26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim”); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.”) There is no evidence in the Veteran’s STRs or post-service treatment records of any signs, notations, or diagnoses of a left hand disability or symptoms. Moreover, the evidence of record does not reflect a left hand disability that causes functional impairment in earning capacity or that is related to or may be associated with service. Notably, while the Veteran complained of pain and weakness in 2009, the 2019 VA examination report showed that the Veteran’s grip was normal and no functional loss or objective evidence of pain on examination was found. As the preponderance of the evidence is against the claim for service connection for a left hand disability, the benefit of the doubt doctrine is not for application. 38U.S.C. §5107 (b);38C.F.R. §3.102. 3. Entitlement to service connection for a left shoulder disability The Veteran contends that he has a left shoulder disability that is due to a fall in active military service. STRs reflect that in March 1963, the Veteran fell down the stairs and injured his left arm which resulted in a left forearm fracture. Film study of the left arm revealed a fracture of the radius that was angled slightly toward the palm. The anterior medial third of the fracture of the ulna showed only partial bony union. There were no complaints with respect to the left shoulder in service and the September 1966 separation report of medical examination reflects a normal clinical evaluation for the Veteran’s upper extremities. Post-service, a private orthopedic consultation reported dated in February 2000 revealed the Veteran reported injuries to his left shoulder in 1972 in the course of employment as a security policeman. He reported being thrown from a vehicle approximately 30 feet. The doctor noted that Veteran went on early retirement in 1996 for disabilities to include left shoulder tendonitis. He was diagnosed with left shoulder tendinitis with current restriction of range of motion. Social Security Administration (SSA) records reflect a history of left shoulder tendonitis in January 2001. VA treatment records from August 2001 reflect that the Veteran reported left shoulder pain that was intermittent with activity. In a March 2003 statement, the Veteran reported that in 1963 while in Fort Knox, Kentucky, on basic training, he fell and landed on the edge of a step on his back. He reported that his left arm was on the top step when the footlocker came smashing down on his left arm, breaking it completely. Private treatment records from a January 2009 neurosurgical consultation report reflect that the Veteran reported that in 1998, he injured himself subduing a prisoner while working as a U.S. Marshall. He reported that he jammed his left shoulder. A February 2009 operative report reflects that the physician noted that the Veteran has had chronic shoulder pain without improvement. The post-operative reported noted labral tear, left shoulder, subacromial bursitis, impingement syndrome, partial rotator cuff tear, acromioclavicular joint arthritis, possible glomus of scar tissue, left hand. Private treatment records from November 2015 reflect that the Veteran reported reduced strengthening to the upper extremity and a long history of shoulder pain. A November 2019 VA examination report reflects that the Veteran reported that he injured his left shoulder in March 1963 when he fell down the stairs and fractured his left forearm. He reported that ongoing physical training further aggravated these areas during his tenure in service. He reported that he has had recurring issues since then. He was diagnosed with a rotator cuff repair. The clinician noted that there is no evidence of chronic left shoulder disability while in the service. He reported that there was no documentation of a left shoulder condition originating from the March 25, 1963, fall. He stated that the rotator cuff condition developed after service and was repaired in 2009. Therefore, the claimed left shoulder rotator cuff repair condition was less likely than not incurred in service. He also opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition and was not aggravated beyond its natural progression by the service-connected left forearm disability. As rationale, the examiner reported that there is no pathophysiological correlation between a fracture left radius and ulna and the development of a rotator cuff issue. Therefore, the claimed left shoulder rotator cuff repair condition was less likely than not proximately due to and aggravated by the service-connected left forearm disability. Upon review of the evidence of record, the Board finds that service connection for a left shoulder disability, on a direct and secondary basis, is not warranted. There was no evidence of a left shoulder disability in service. The first objective post-service treatment for left shoulder disability was not until 1999, more than three decades after his discharge, when a diagnosis of left shoulder tendinitis was rendered. While the Veteran is competent to report experiencing symptoms of left shoulder pain since the in-service fall, the Board finds the reports not credible. The Veteran’s reports are internally inconsistent with reports in contemporaneous treatment records, which contain no left shoulder complaints in service, to include the negative September 1966 separation examination, and indications that the Veteran initially injured his left shoulder in a 1972 work injury and again in 1998 subduing a prisoner while working as a U.S. Marshall. The Board gives more probative weight to competent medical evidence, which establishes that the Veteran’s left shoulder disability is not due to service or a service-connected disability. Notably, based on a review of the available records and his particular expertise, and medical literature, the November 2019 VA examiner found that the left shoulder disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Additionally, he found that the Veteran’s left shoulder disability was less likely than not (less than 50 percent probability) proximately due to or the result of or aggravated by his service-connected left forearm disability. As the physician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, the opinion, addressing both causation and aggravation, is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran and his representative contend that his left shoulder disability is related to service and/or the service-connected left forearm disability, their statements are not competent. Jandreau, supra. The Veteran has submitted no medical opinions to support his contentions. For the foregoing reasons, the preponderance of the evidence is against the claim for a left shoulder disability on a direct and secondary basis. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. L. WALLIN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Laroche, 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.