Citation Nr: 21021673 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-02 831 DATE: April 13, 2021 ORDER The application to reopen the claim for service connection of lumbar spine disability is granted. The application to reopen the claim for service connection of left shoulder condition is granted. Entitlement to service connection for lumbar spine disability is denied. REMANDED Entitlement to service connection for left shoulder condition is remanded. FINDINGS OF FACT 1. In a January 2013 rating decision of the agency of original jurisdiction (AOJ), the service connection claims for lower back and left shoulder were denied. Although the Veteran submitted an initial disagreement with the decision, and a statement of the case was issued, the Veteran did not file an appeal to the Board. 2. Evidence received since the January 2013 denial was not previously considered by the AOJ; is related to unestablished facts; and raises a reasonable possibility of substantiating the claims of service connection for lower back and left shoulder conditions. 3. The Veteran’s lumbar spine disability did not manifest during active service or within the presumptive period, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The January 2013 denial of service connection for lower back and left shoulder conditions is a final decision. 38 U.S.C. § 5104; 38 C.F.R. § 20.302. 2. New and material evidence has been received sufficient to reopen a claim for service connection of lumbar spine disability. 38 U.S.C. §§ 501, 5103A, 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received sufficient to reopen a claim for service connection of left shoulder disability. 38 U.S.C. §§ 501, 5103A, 5108; 38 C.F.R. § 3.156(a). 4. The criteria for entitlement to service connection for lumbar spine condition have not been met. 38 U.S.C. §§ 101(21), 1101, 1110, 1112, 1116, 1131, 5103, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from March 1968 to November 1970. He is a combat Veteran of the Vietnam War. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a November 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In February 2021, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. New and Material Evidence The Veteran’s original 2011 claim for service connection was denied in a January 2013 rating decision. The Veteran filed a Notice of Disagreement (NOD) in April 2013. The RO issued a Statement of the Case (SOC) in October 2013 denying the claim for lack of evidence of aggravation of his pre-existing left shoulder injury and lack of a nexus for his low back conditions. The Veteran did not file a formal appeal to the Board (VA Form 9) and therefore the decision became final. See 38 C.F.R. § 20.202. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence “not previously submitted to agency decisionmakers.” Material evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran filed an application to reopen his prior denial in February 2014. Evidence submitted since the January 2013 final denial includes several lay statements of family and friends, VA and private medical records, military personnel records, and a medical letter in support of his back claim. An August 2015 private medical opinion links the Veteran’s lumbar spine disorder to repetitive trauma from lifting, carrying, or twisting. This evidence addresses the previously unestablished nexus element of the Veteran’s lumbar spine claim and was associated with the file after the final denial. See 38 C.F.R. § 3.303. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Therefore, it is both new and material evidence and raises a reasonable possibility of substantiating the claim. As such, the application to reopen the claim for lumbar spine disability is granted. New and material evidence has also been received pertaining to the Veteran’s left shoulder condition. The RO previously denied the Veteran’s claim for lack of in-service evidence of aggravation. See 38 U.S.C.§ 1153; 38 C.F.R. § 3.306. However, the Veteran testified at his 2021 hearing that he experienced at least two dislocations of the left shoulder while in bootcamp and in Vietnam. The Board finds the Veteran’s testimony competent and credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record does not indicate details of his in-service injuries were available to the AOJ prior to adjudication, and a lack of service treatment records addressing the shoulder appears to be the sole basis for rejecting a theory of aggravation. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Veteran was not provided a VA examination in connection with his left shoulder and no medical opinion on the issue of aggravation is available. As the Veteran has competently testified to experiencing an in-service injury, thus providing new and material evidence addressing possible aggravation of his pre-existing condition, the claim for service connection for left shoulder disability is reopened. 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 at 1166 -67. Certain chronic diseases, such as arthritis, 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to service connection for lumbar spine condition The Veteran contends he is entitled to service connection for his low back condition. Specifically, he contends his degenerative disc disease (DDD) of the lumbar spine was incurred in or caused by his military service. He asserts his military occupational specialty (MOS) as a radio telegraph operator required him to lift and carry heavy equipment and the physical rigors of combat placed increased strain on his back. He testified to experiencing symptoms during and immediately after service but did not seek medical treatment. He reports feeling sharp stabbing pain that radiates down the right leg. As evidenced by private treatment records, the Veteran has had various diagnoses of the lower back, including: grade II spondylolisthesis of L4-L5, central spinal stenosis with radiculopathy, advanced neural foraminal stenosis of L5-S1, degenerative disc disease at L3-L4, degenerative arthritis of L4-L5, osteoarthritis at L5-S1, anterolisthesis of L4-L5, spondylolysis at the pars articularis, disc bulging at L4-L5, scoliosis, and extensive nerve root clumping. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1331. However, the 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. Private treatment records show the Veteran was not diagnosed with arthritis of the lumbar spine until August 2007, many decades after his separation from service. See MTR- Non-Gov, 10/31/2011, pg. 26/30. There is no indication the Veteran had symptoms of lumbar spine disability until 1986 or received treatment for lumbar spine pain prior to April 1992. See MTR- Non-Gov, 10/31/2011, pg. 3/30. At his January 2013 examination, the Veteran reported he believed his back pain in service to be muscular aches and did not seek treatment. He reports feeling low back pain since separation and initially receiving treatment in the early 1980s. after a review of the record and examination of the Veteran, the VA examiner opined that the Veteran’s degenerative disc disease is less likely than not related to an in-service injury, event, or disease, including carrying heavy packs, marching, and patrol. See VA Exam, 1/8/2013, pg. 3/33. The rationale relied on an absence of treatment records during service and the Veteran’s initial treatment being 22 years following separation. The examiner opined the many years the Veteran worked with heavy equipment after service was more likely the cause of his chronic back problems rather than two years of active duty. Pg. 17/33. While the Veteran is competent to report having experienced symptoms of low back pain since service and consistently since, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an injury during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, interpretation of complicated diagnostic medical testing. The Veteran has not demonstrated the necessary medical expertise or training to opine on the etiology of his condition or establish a relationship to service. Contemporaneous treatment records show that an initial onset of pain was reported by the Veteran as 1986. MTR- Non-Gov, 12/28/2011, pg. 8/16. A treatment record from 1992 indicates the Veteran experienced low back pain for years with pain worsening in 1991. MTR- Non-Gov, 10/31/2011, pg. 3, 7/30. Records from 1998 indicate he experienced pain for four to five years prior with no preceding injury. Pg. 12/30. Subsequent treatment records in 2007 note an onset of symptoms for 20 years or more. MTR- Non-Gov, 12/28/2011, pg. 5/16. Additionally, in a 2014 lay statement from the Veteran’s daughter, she recalls the Veteran experiencing low back pain when he was roughly 40 years old. Buddy Statement, 2/19/2014. Evidence of symptoms and estimated dates of onset available for the record fall outside of the presumptive period for service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). While the Veteran, and several supporting lay witnesses, believe his lumbar spine disability is related to an in-service injury, event, or disease, the Veteran and affiants are not competent to establish opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the medical opinion of the VA examiner. The Board gives more probative weight to competent medical evidence, which establishes that these symptoms had their onset following service and were instead attributable to the Veteran’s post-service occupation. Service connection for lumbar spine 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 condition and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran submitted an August 2015 letter from his treating Physician’s Assistant, P.A. BB, regarding the Veteran’s low back pain management. MTR- Non-Gov,11/2/2015. P.A. BB notes the Veteran’s recent imaging results show degenerative changes, foraminal narrowing, central canal narrowing, and spondylolisthesis. He notes the changes are progressing and are due to “repetitive trauma to the spine, whether this be lifting, carrying, or twisting.” The Board gives more probative weight to VA examiner’s opinion regarding the disability’s relationship with service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). P.A. BB’s letter lacks specificity regarding the nature and etiology of the Veteran’s lumbar spine disability and does not indicate active duty as the cause. The opinion does not provide any medical rationale as to establish a relationship between the disability and an event or injury during military service. In essence, P.A. BB’s opinion on the mechanical cause of the disability corroborates the VA examiner’s conclusions. The 2013 VA examiner determined that the Veteran’s symptoms were due to repetitive trauma from his post-service jobs, that is manual labor as a heavy machine driver and landfill site manager. This is also supported by private treatment records attributing the symptoms to operating heavy equipment with intermittent heavy physical work. MTR- Non-Gov, 12/28/2011, pg. 6/16. Additionally, treatment notes indicate the type of injury observed is usually due to overuse. See MTR- Non-Gov, 10/31/2011, pg. 24/30. Consequently, the Board gives more probative weight to the medical opinion of the VA examiner. Accordingly, the evidence is against establishing a nexus relationship between the disability and the Veteran’s active duty, therefore the claim for service connection is denied and the benefit of the doubt doctrine is not for application. See Gilbert, 1 Vet. App. at 57. REASONS FOR REMAND VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and the burden then falls on the government to rebut the presumption of soundness. The standard for rebutting the presumption of soundness under 38 U.S.C. § 1111 requires that VA shows by clear and unmistakable evidence that (1) the veteran’s disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 1. Entitlement to service connection for left shoulder condition is remanded. The Veteran contends he is entitled to service connection for a left shoulder condition incurred in military service. The Veteran asserts his shoulder separated twice during active duty; the first injury occurred during bootcamp and again while serving in Vietnam. He alternatively argues the left shoulder condition is secondary to his low back condition. At his February 2021 hearing, the Veteran testified that his pain began in service and has progressively worsened such that he can no longer raise his arm above his head. Hearing, 2/23/2021, pg. 2/8. He indicated that, although he played football and basketball prior to service, he was not aware he had arthritis in the shoulder as he did not have pain or difficulties prior to bootcamp. Pg. 4/8. He believes his shoulder was aggravated by active duty due to his MOS as a radio telegraph operator which required carrying heavy field gear and large radio equipment on a regular basis. He also indicated the rigors of combat activity while serving in Vietnam may have placed a strain on his injuries. The Veteran’s April 1968 entrance examination and diagnostic imaging indicates a “marked amount of irregularity and bony spurring about the distal clavicle” with “multiple old traumatic injuries with post traumatic arthritic changes about the distal clavicle and calcification of the coraco-clavicular ligament” from several dislocations prior to service. STR, 3/16/2014, pg. 14/35. The Veteran noted he separated his left shoulder in 1966, which was treated with tape and a sling, but had no trouble since and denied any residuals or recurrence. Pg. 24/35. The Board finds the Veteran’s left shoulder arthritis pre-existed his military service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.156, 3.303(c). As the Veteran had a preexisting condition that was noted at entrance into service, the presumption of soundness as to the left shoulder does not attach, and the burden falls on the Veteran to establish that the condition underwent an increase in severity in service. See Wagner, at 1096. He has contended it did, as evidenced by his two shoulder dislocations. As such, the question for the Board is whether such dislocations were clearly and unmistakable due to the natural progress of the preexisting shoulder arthritis. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. As discussed above, new and material evidence has been submitted and the claim for service connection of left shoulder disability is reopened. The Board finds the new evidence in conjunction with the prior evidence of record necessitates an examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4)(ii). The United States Court of Appeals for Veterans Claims (Court) held that an examination is required when: (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) there is insufficient evidence to decide the case. Review of private treatment records reveals the Veteran has several current diagnoses for the left shoulder as evidenced by decades of private treatment records, including: ruptured rotator cuff, osteoarthritis of the left acromioclavicular joint, and degenerative changes. Accordingly, the Veteran has a current disability and the first element is satisfied. See 38 U.S.C. § 5103A(d)(2)(A). As to whether an in-service event, injury, or illness occurred, the Veteran reports injuring his left shoulder while serving in Vietnam, triggering a combat presumption. Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d); See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (the presumption also extends to a combat veteran’s reports of experiencing a permanent disability beginning at the time of injury during combat). The record confirms the Veteran’s participation in several combat operations while serving in Vietnam. See MPR, 6/23/2014, pg. 1, 26, 30/91. Military personnel records record details of the Veteran’s participation and receipt of combat medals, badges, and devices. DD-214, 6/26/1971. As such, the Veteran’s testimony is competent evidence describing an in-service injury and the second element is satisfied. The third element requires some evidence indicating symptoms of the Veteran’s disability may be related to his active service. 38 U.S.C. § 5103A(d)(2)(B). As this is a low threshold, the Board finds the Veteran’s persistent and worsening left shoulder symptoms are reasonably related to the characterization of his service period, MOS duties, and combat experience. The Veteran testified to working with a forward observer in the field while carrying a 25 radio and combat gear, implying heavy and often bulky loads. At least one incident of combat experience required the Veteran to carry “reaction radios to the OP’s through incoming enemy rocket and mortar fire,” as well as service with a sniper team. Pg. 71/91. Additionally, the Veteran is competent to establish the presences of observable symptomatology, here the in-service event being that of a dislocated shoulder, which he had previously experienced. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The cumulative evidence raises the possibly the current disability is related to the in-service dislocations. The remaining element in determining whether an examination is required is contingent upon whether sufficient competent medical evidence is of record to make a decision on the claim. The Board finds the medical evidence is not sufficient as to whether the Veteran’s pre-existing left shoulder condition was aggravated by his active service. See 38 U.S.C. § 5103A(d)(2)(C). The VA examination conducted in January 2013 did not address the Veteran’s shoulder pain, providing an opinion only as to his lumbar spine condition. The remaining medical evidence indicates the Veteran has complained of left shoulder pain for many years with a history of dislocations, tending to support his contention of shoulder separations while in service. Post-service private treatment records indicate repetitive use and trauma as a factor influencing his chronic pain. The 2015 letter from P.A. BB does not directly address the Veteran’s shoulder condition and instead references lumbar and cervical “trauma to the spine.” There is supporting medical evidence that the Veteran’s shoulder pain may be related to or have caused a cervical spine condition. However, post-service treatment records indicate he also sustained a fall in July 1999 resulting in rib fractures. See MTR- Non-Gov, 12/19/2011, pg. 47/152; MTR- Non-Gov, 10/31/2011, pg. 5/30. In February 2000, the Veteran reported experiencing a weak shoulder since the injury with feelings of numbness and difficulty externally rotating and abducting. X-ray imaging showed acromioclavicular joint arthritis, large subacromial spur and rotator cuff tendonitis with likely tear. Follow up notes indicate a complete rupture of the rotator cuff. Pg. 6/30. Treatment in 2007 indicates more pain with flexion and external rotation of the left shoulder, however x-rays show no dislocation or lesions and well-preserved joint spacing. and Pgs. 20, 28/30. MRIs of the cervical spine taken in August 2015 indicate the Veteran continued to experience chronic left shoulder pain. MTR- Non-Gov, 11/2/2015, pg. 1/5. The medical record lacks any consideration of the condition’s relationship to military service, the cause of the condition’s severity, any discussion of possible aggravation of the condition by his service, or whether these later events are a natural progression of the disability. As each element has been met under McLendon v. Nicholson, the Board remands the issue for an examination to determine whether the Veteran’s pre-existing condition was aggravated by his active duty military service. Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination with the appropriate clinician to assess the nature and etiology of the Veteran’s left shoulder disability. Any necessary diagnostic testing should be performed. The examiner is asked to review the claims files and provide an opinion on the following: Whether there is clear and unmistakable evidence that the Veteran’s in-service dislocations (self-treated during combat situations) were not beyond the natural progression of the Veteran’s pre-existing left shoulder condition. The examiner is advised that at entry into service, the service treatment records note: “marked amount of irregularity and bony spurring about the distal clavicle” with “multiple old traumatic injuries with post traumatic arthritic changes about the distal clavicle and calcification of the coraco-clavicular ligament” from several dislocations prior to service. See VBMS, document labeled STR-Medical, receipt date 3/16/2014, pg. 14/35. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.