Citation Nr: 21025764 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-34 883 DATE: April 28, 2021 ORDER Entitlement to service connection for a shoulder and arm condition, diagnosed as bilateral shoulder arthritis, is denied. Entitlement to service connection for a low back disorder, diagnosed as degenerative arthritis of the spine, is denied. REMANDED The issue of entitlement to service connection for hypertension, to include as due to herbicide exposure or as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral shoulder arthritis is not shown in service, or for many years thereafter, and is not otherwise related to active duty service. 2. The Veteran’s low back disorder is not shown in service, or for many years thereafter, and is not otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a shoulder and arm condition, diagnosed as bilateral shoulder arthritis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a low back disorder, diagnosed as degenerative arthritis of the spine, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Marine Corps from June 1966 to February 1970, to include service in Vietnam. In January 2017, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In a May 2018 letter, the Board of Veterans’ Appeals (Board) informed the Veteran that the VLJ who conducted the January 2017 hearing was no longer employed with the Board and offered the Veteran another hearing. In a May 2018 response, the Veteran stated that he did not wish to appear at another Board hearing and requested that the Board consider his case on the evidence of record. The Board remanded the claim for service connection for arthritis of the back, arms and shoulders in June 2018, December 2018, and December 2020. The Board remanded the claim for service connection for hypertension in June 2019 and December 2020. Regarding the arthritis claims, the Board is now satisfied that there has been substantial compliance with the prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Generally, to establish service connection for a present disability, "the veteran must show (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, 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). 1. Entitlement to service connection for a shoulder and arm condition, diagnosed as bilateral shoulder arthritis 2. Entitlement to service connection for a low back disorder, diagnosed as degenerative arthritis of the spine The Veteran asserts that his back and shoulder arthritis are related to an in-service injury. Specifically, in an October 2018 letter, the Veteran asserted that his arthritic conditions are related to a vehicle accident while on active duty. During a May 2012 VA examination, he told the examiner that this vehicle accident occurred while on active duty in 1966. Unfortunately, service connection must be denied. The lay and medical evidence does not show that these disorders began in service or are otherwise related to service. The Board concedes current disorders. Specifically, the Veteran’s May 2012 C&P examiner diagnosed him with lumbar degenerative joint disease, onset in the 1970s. Additionally, interpretation of the Veteran’s August 2019 MRI shows degenerative joint disease of both shoulders. Nonetheless, the evidence of record weighs against a showing that these disorders began in service or are otherwise related to service. First, the Veteran’s service treatment records do not reflect diagnoses of or treatment for low back or bilateral shoulder conditions. However, there is a June 1966 note in the service treatment records indicating that he was involved in a motor vehicle accident in December 1965 – six months prior to active duty service. This account is corroborated by the Veteran’s own statements to an August 2019 examiner that this accident occurred during his senior year of high school, when he was not in service. Additionally, he told the August 2019 examiner that he could not recall any specific trauma to his back or shoulders during service. The Veteran also told the May 2012 VA examiner that he had no low back issues at separation. This is reinforced by his separation physical in February 1970, in which his spine and other musculoskeletal areas, to include his shoulders and arms, were listed as normal. The Veteran did tell the May 2012 examiner that he had low back issues in the late 1970s. However, private treatment records show the first complaint for low back pain in February 1996, and the Veteran told the August 2019 examiner that his back really started bothering him in the last 15 to 20 years. The first mention of arm or shoulder pain in the record is an April 1996 private treatment note – over 25 years after service. Due to the large gap in treatment outlined above, the normal findings for the spine and upper extremities during the Veteran’s February 1970 separation examination, his own report that he had no back issues until the late 1970s, and his report that he could not recall specific back or shoulder trauma during service, the Board finds that service connection cannot be granted based on continuity of symptomatology since service. The evidence also does not establish a medical nexus between the Veteran’s current arthritic disabilities and his military service. In that regard, the May 2012 examiner concluded that the Veteran’s current lumbar arthritis was not related to service. The examiner noted that the clinical exam was “entirely normal, with no localized tenderness” and full range of motion. The May 2012 examiner did not address arthritis of the arms and shoulders. In September 2018, a VA examiner concluded that both arthritic conditions were not related to service. In discussing the Veteran’s motor vehicle accident, the examiner mistakenly noted its occurrence as June 1966, when it was noted in the service treatment records, instead of December 1965. Nevertheless, the examiner opined against service connection, as the record was silent for treatment or diagnoses during the Veteran’s active duty service. The examiner wrote that there was “significant silence” for shoulder or arm pain “until more recent complaints.” Turning to his lumbar spine arthritis, the examiner also concluded against service connection due to the large gap in complaints since service. Finally, the Veteran was afforded an additional VA examination in August 2019. That examiner also concluded that the Veteran’s lumbar spine and bilateral shoulder arthritis were not related to service. The examiner noted that the Veteran’s motor vehicle accident actually occurred prior to service in December 1965, as the service treatment records confirm. The examiner explained that it was less likely than not that these disorders were related to service, because there were no complaints for back pain until many years after service, and the first complaint of a shoulder issue was not until “1997 or 1998.” Furthermore, the examiner noted that the Veteran’s wife stated that he had been diagnosed with rheumatoid arthritis around 2009. In concluding that service connection is not warranted for these conditions, the Board acknowledges the Veteran's statements relating his current arthritic disorders to service. Specifically, the Veteran told the May 2012 examiner that he suffered a motor vehicle accident in 1966 during active duty service. This was reiterated in the October 2018 letter in which he asserted that his arthritic conditions were due to his “in-service” vehicle accident. The Board also acknowledges that chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, 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. Finally, the Board acknowledges that absence of treatment records either during or after service is not, alone, a sufficient reason for rejecting lay evidence. As discussed in the December 2020 remand, however, the Veteran’s lay statements regarding the onset of his arthritis symptoms conflict with each other and with the record. These internal inconsistencies diminish the credibility of his statements, such that they cannot be relied upon, in the absence of other clarifying evidence, to grant the claims. The Veteran was afforded the opportunity to respond to the Board’s findings regarding the credibility of the statements, but he has not submitted a response. Furthermore, although the Veteran is competent to describe the onset and continuation of his symptomatology, he is not competent to provide an opinion on the etiology of his lumbar spine and bilateral shoulder arthritis, which is a medically complex question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4. (Fed. Cir. 2007). In sum, the most probative evidence of record shows no link between the Veteran’s back and bilateral shoulder arthritis and an in-service event, injury, or disease, nor does it allow for grants of service connection for those conditions on the basis of incurrence within a presumptive period or continuity of symptomatology. Based on the evidence of record, the Veteran's claims for service connection for arthritis of the back and bilateral shoulders must be denied. REASONS FOR REMAND The issue of entitlement to service connection for hypertension, to include as due to herbicide exposure or as secondary to service-connected disabilities, is remanded. The Veteran has put forward several theories of entitlement in connection with his claim for service connection for hypertension, with his initial theory being that the condition is related to his presumed in-service exposure to herbicides. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This, however, does not preclude the Veteran from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board previously remanded this claim to obtain opinions addressing the Veteran’s theory that his hypertension was caused or aggravated by a service-connected disability. Unfortunately, to date, an opinion on whether his hypertension was caused by his presumed herbicide exposure has not been obtained. In light of the Veteran’s assertions, an addendum medical opinion is needed so that a clinician may address whether his hypertension is directly related to his presumed in-service exposure to herbicide agents. The matter is REMANDED for the following action: Obtain a medical opinion addressing whether the Veteran’s hypertension is related to his conceded in-service exposure to herbicides. If a new examination is needed to respond to the question posed, one should be scheduled. After reviewing the claims file, the clinician is asked to respond to the following: (Continued on the next page)   Is it at least as likely as not (50 percent probability or greater), that the Veteran’s hypertension is related to his conceded in-service exposure to herbicide agents (Agent Orange)? Please explain why or why not, specifically considering and discussing the National Academy of Sciences (NAS) Institute of Medicine’s 2018 update in which hypertension was moved from the “limited or suggestive evidence” category of an association between hypertension and herbicide agent exposure to the “sufficient evidence of an association” category. The fact that hypertension has not been added to the list of diseases presumed service connected in veterans exposed to Agent Orange should not be the sole basis for a negative opinion. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald