Citation Nr: 21024284 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-19 592 DATE: April 22, 2021 ORDER Entitlement to service connection for low back disability is granted. Entitlement to service connection for right shoulder disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his low back disability is related to in-service events and injury. 2. The Veteran’s right shoulder disability is related to in-service events and injury. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability have been satisfied. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for right shoulder disability have been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1982 to August 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In May 2019, the Board remanded the matters for additional development and they have since returned for further appellate review. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Low Back Disability The Veteran has a current low back disability. For example, at his May 2015 VA examination he was diagnosed with lumbar arthritis, lumbar radiculopathy, and sacroiliitis. Thus, the remaining question is whether the current low back disability is related to service. Service treatment records show a report of low back pain in September 1983. The record indicates that the Veteran had experienced low back pain over two months without history of injury. It was noted that the Veteran lifted weights and did physical fitness/training (PFT) “constantly”. Muscle tension was noted, and the Veteran was assessed with low back pain. The Veteran has relayed that his back pain onset during service after he fell during a hump carrying a full load of gear. The Board notes that the term “hump” is used by Marines to describe hiking for long distances with a pack, body armor, helmet, weapon, etc. He has reported having problems with his back on and off since this incident. The Veteran submitted buddy statements attesting to his participation in humps. In one statement, a Marine recalled participating in a night patrol with the Veteran and while marching up an embankment he saw the Veteran slip back and fall on his lower back landing on his machine gun. The Marine remembered the Veteran’s back being bruised and discolored. The Veteran presented for a VA examination in May 2015, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that a review of records from 1997 until 2011 does not reflect any visit for back pain, and there were no other available records from 1982 to 1986. In January 2020, a VA medical opinion was provided addressing the Veteran’s low back disability. After reviewing the pertinent medical history, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that while there is evidence that the Veteran was seen in 1983 for low back pain and diagnosed with muscle tension, there is no evidence of chronic low back pain during the rest of active duty. The examiner noted that in 1983, the Veteran reported no injury as cause for his back pain. His separation file was silent for back complaints and post separation diagnosis of degenerative joint disease of the lumbar spine was not until approximately 20 years after separation from the military making it unlikely his degenerative joint disease of the spine was secondary to carrying equipment on his back. The examiner noted that the Veteran had greater than 20 years general wear and tear on his spine post separation and most likely that general wear and tear is the cause of the degenerative joint disease. In May 2020, the Veteran submitted a private medical opinion by Dr. D.F., who was familiar with the Veteran’s treatment history and had treated the Veteran for about 15 years. The majority of the opinion is not written by Dr. D.F., but Dr. D.F. essentially affirms what is written. The other author, presumably the Veteran’s attorney, details the Veteran’s service. This includes participation in field operations in which he walked long distances carrying body armor, helmet, weapons, and a tripod that weighed about 30 pounds. That in 1983, the Veteran fell and struck his lower back on a machine gun that he was carrying and that he had a discolored and inflamed back after the incident. When asked, Doctor D.F. affirmed his belief that the Veteran’s current low back condition and sacroiliitis are consistent with the above activities, particularly the fall injury in the early 1980s during service, despite the 20 plus year gap between service and his diagnosis in 2015. Doctor D.F. further affirmed it is his belief to a degree of 50 percent probability or greater that the current low back disabilities are related to service. Upon review of the record, the Board finds the evidence to be in equipoise as to whether the Veteran’s current low back disability is related to service. In that regard, the Board gives lesser probative weight to the May 2015 VA medical opinion as it did not consider the Veteran’s injury in September 1983. The Board gives some probative weight to the January 2020 VA medical opinion as it considered the Veteran’s service injury and his treatment since his separation from service. The Board gives some probative weight to the May 2020 private medical opinion by Dr. D.F. which is consistent with the lay statements which the Board finds credible. While the format of the opinion is not ideal, the Board finds that Dr. D.F. is offering an opinion linking the Veteran’s current low back disabilities to service because the disabilities are consistent with disability which could result from the in-service activities and injury. Medical professionals looking at similar facts have come to different conclusions and provided explanations for their findings. Thus, the evidence is in equipoise and reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for low back disability is granted. 2. Right Shoulder Disability The Veteran has a current right shoulder disability. For example, at his December 2019 VA examination he was diagnosed with right shoulder strain and right shoulder impingement syndrome. Thus, the remaining question is whether the current right shoulder disability is related to service. Service treatment records do not show any complaint, diagnosis, or treatment related to the right shoulder. The Veteran has relayed that as an infantryman his shoulders, especially the right shoulder, were affected by carrying, and the kick from firing, his machine gun. See June 2015 Notice of Disagreement. He also testified that he dislocated or injured his right shoulder while rappelling during military training. He stated that at the time his shoulder was iced, he continued to have right shoulder pain, and he now has difficulty lifting his arm above his head. In buddy statements, a fellow Marine recalled the Veteran injuring his shoulder while rappelling and having to ice it down and put heat on it. The Veteran presented for a VA examination in December 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that there is no evidence in the current claims file to support the Veteran incurred a right shoulder injury while on active duty, and thus, a nexus is not established. The May 2020 opinion by Dr. F. discussed above also addresses the right shoulder. Again, the second author details a history consistent with the lay statements above, which the Board finds credible. When asked, Doctor D.F. affirmed his belief that the Veteran’s current right shoulder condition is consistent with his military activities and particularly with rappelling in the early 1980s during his service, despite the 10 year gap between service and treatment. Doctor D.F. further affirmed it is his belief to a degree of 50 percent probability or greater that the current right shoulder conditions are related to service. As the VA opinion did not consider the lay statements of in-service injury to the right shoulder, the opinion is afforded lesser probative weight. As such, the evidence, particularly the opinion from Dr. D.F., weighs in favor of the claim. Service connection for right shoulder disability is granted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.