Citation Nr: 21024587 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-11 502 DATE: April 23, 2021 ORDER Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for chronic disease or disorder manifested by chronic pain is denied. REMANDED Entitlement to service connection for chronic disease or disorder manifested by right knee pain is remanded. FINDINGS OF FACT 1. The preponderance of the evidence reveals that the Veteran’s left shoulder disability is attributable to service. 2. The preponderance of the evidence reveals that the Veteran’s claimed chronic pain is attributable to his service-connected disabilities and does not represent a separate, distinct disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for chronic disease or disorder manifested by chronic pain have not been met. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to September 1994. The matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a hearing before a member of the Board, in November 2018, he withdrew his request for a Board hearing. In January 2019, the Board reopened the Veteran’s claim for service connection for chronic disease or disorder manifested by left shoulder pain. Additionally, the Board remanded the above matters for the issuance of a supplemental statement of the case (SSOC). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain (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). Left Shoulder Disability The Veteran seeks service connection for a left shoulder disability. The record shows that the Veteran has been diagnosed with left shoulder traumatic arthropathy with instability. See July 2011 VA examination report. The Veteran’s service treatment records (STRs) note that the Veteran reported left shoulder pain in October 1992 after falling three weeks prior while axial loading; the physician noted a possible superior glenoid injury. The Veteran reported having a painful or “trick” shoulder or elbow in his September 1994 separation report of medical history. He specified that he had left shoulder pain and trauma. A July 2011 VA examiner opined that the Veteran’s left shoulder disability is at least as likely as not caused by his left shoulder dislocation in service. He reasoned that any dislocation of the shoulder can damage the labrum, predisposing an individual to future dislocations. A November 2014 VA examiner opined that the Veteran’s left shoulder disability is more likely than not related to a fall in September/October 1992, and not related to the alcohol related incident in February 1992. The examiner noted that the Veteran’s February 1992 STRs indicate that an alcohol related incident resulted in a corneal abrasion and blurry vision. He reasoned that there was no mention of any complaints of, diagnoses of, or treatment for a shoulder injury at that time. The examiner further indicated that while the Veteran had other alcohol related incidents in January 1994, March 1994, and July 1994, there is no entry for an alcohol related incident for October 1992. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a left shoulder disability is warranted. Here, the evidence of record supports the Board’s finding that the Veteran’s left shoulder disability is due to a September/October 1992 injury. Specifically, the July 2011 and November 2014 VA examiners opined that the Veteran’s left shoulder disability is more likely than not etiologically related to service. The Board finds these medical opinions to be probative as they are based on an accurate medical and lay history as well as provide a reasoned explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, the Board finds that these medical opinions are entitled to significant weight. Consequently, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s left shoulder disability is etiologically related to service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service for a left shoulder disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Chronic Disease or Disorder Manifested by Chronic Pain The Veteran seeks service connection for chronic disease or disorder manifested by chronic pain. The Veteran contends that he has chronic pain in his back, legs, knee, and arms. Presumptive service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(1). The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(2). At the outset, the Board notes that the Veteran’s military personnel records confirm that he served in the Southwest Asia theater of operations during the requisite time period. There are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that VA determines in regulations warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is a condition that, by history, physical examination, and laboratory tests, cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multisymptom illness is defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that VA determines meets the criteria in paragraph 3.317(a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Considering the evidence of record under the law and regulations as set forth above, the Board concludes that service connection is not warranted for chronic pain. A December 2014 VA examiner opined that the Veteran did not have an undiagnosed illness for which no etiology is established. He further opined that the Veteran did not have a medically unexplained chronic multisymptom illness. Rather, the examiner indicated that the Veteran’s reports of chronic pain were related to his service-connected back disability and bilateral lower extremity neuropathy. The Board further notes that the Veteran has been granted service connection for a left shoulder disability herein and is also service-connected for a right fifth metacarpal fracture. The Board finds the December 2014 VA examiner’s opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. Additionally, the Board finds that the examiner adequately considered the Veteran’s reports of chronic pain and attributed his chronic pain to his service-connected disabilities. Accordingly, the Board accepts the VA examiner’s opinion as the most probative evidence as to whether the Veteran has an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. The Board has considered the Veteran’s lay history of symptomatology related to his claimed disorder throughout the appeal period. While the Veteran believes that he has chronic pain attributed to his Persian Gulf service, he is not competent to provide a diagnosis in this case. The Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of a medically complex disorder such as chronic pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his statements are not competent evidence as to the etiology of his claimed disability and the Board ultimately affords the objective medical evidence of record with greater probative weight than the Veteran’s lay statements. As discussed above, the Board affords more probative weight to the competent medical evidence of the December 2014 VA examination report. It is important to note that the Veteran’s claim is not denied because he does not have such signs or symptoms. Rather, the claimed signs and symptoms have been associated with service-connected disabilities for which he is receiving compensation. The rating schedule generally prohibits pyramiding (evaluating the same disability under different diagnostic codes), and the United States Court of Appeals for Veterans Claims (Court) has held that pyramiding is disfavored “unless the regulation expressly provides otherwise.” Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition). In sum, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for a chronic disease or disorder manifested by chronic pain is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert,1 Vet. App. at 55. REASONS FOR REMAND Service Connection for a Chronic Disease or Disorder Manifested by Right Knee Pain The Board regrets further delay, but additional development is necessary before the matter can be adjudicated. Specifically, the Board has a duty to consider all theories of entitlement raised by the record. In this regard, the Board finds that the theory of secondary service connection has been raised and must be addressed. The Veteran submitted a November 2018 medical opinion from E.A.M, PA-C, stating that the Veteran’s legs and knees are showing signs associated with overcompensation as a result of his spine condition. The Board notes that the Veteran is service-connected for a back disability and presently, there is no VA medical opinion of record as to whether the Veteran’s chronic disease or disorder manifested by right knee pain has been caused by or aggravated by his service-connected back disability. Consequently, remand is necessary to obtain a VA medical opinion addressing secondary service connection. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s chronic disease or disorder manifested by right knee pain. Following a review of the claims file, the examiner is asked to identify all current disorders manifested by right knee pain, to include his previous diagnosis of right knee patella femoral dysfunction. For each disorder identified, the examiner is asked to provide an opinion as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the disorder began in or is otherwise etiologically related to service? b) Is it at least as likely as not (a 50 percent or greater probability) that the disorder is proximately due to, the result of, the Veteran’s service-connected back disability? c) Is it at least as likely as not (a 50 percent or greater probability) that the disorder has been aggravated beyond normal progression by the Veteran’s service-connected back disability?   A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.