Citation Nr: 21027481 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-32 517 DATE: May 5, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for blindness is denied. Entitlement to service connection for blurred vision is denied. Entitlement to service connection for a lower back disability is denied. FINDINGS OF FACT 1. The Veteran's right shoulder disability did not manifest in service or for many years after and is unrelated to service. 2. The weight of the evidence is against finding a current disability of blindness. 3. The weight of the evidence is against finding a current disability of blurred vision. 4. The weight of the evidence is against finding a current lower back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for blindness have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for blurry vision have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for a lower back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1969 to May 1971. These claims come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the claims decided herein for further development. Specifically, the RO was directed to obtain new examinations for the Veteran's right shoulder, lower back, and vision disabilities. However, the claims file reflects that the RO and examination contractor have been unable to contact the Veteran. See Nov. 2019 Report of General Information; Feb. 2020 Report of General Information. Specifically, the current address is invalid and the Veteran's telephone numbers of record are all inoperable. See id. Accordingly, in February 2020, the Veteran's examinations were canceled. In this regard, the Board notes that VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that if a veteran seeks assistance, she cannot passively wait for it in circumstances where her own actions are essential in obtaining putative evidence). The burden is on the Veteran to keep VA apprised of his whereabouts and if he does not keep VA informed, "there is no duty on the part of the VA to turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The Board also notes that the Veteran has appealed several other issues that the Board remanded in May 2019. Those issues are not yet ripe for adjudication and will not be addressed in this decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a 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" also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For purposes of establishing service connection, a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service, if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for a right shoulder disability The Veteran contends that his right shoulder disability is related to his active duty service. First, the evidence shows that Veteran has a current disability. In an April 2013 VA treatment note, osteoarthritis of the right shoulder is noted as one of the Veteran's active problems. Accordingly, the Board finds that the first element of service connection is met. See Holton, supra. Second, regarding an in-service event, the Veteran contends that his right shoulder disability was caused when he was blown off the flight deck into the catwalk while serving aboard the U.S.S. Coral Sea (CVA-43). The Veteran is competent to describe symptoms and events observable to his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds that the evidence regarding an in-service event is at least in equipoise. Thus, the second element of service connection is met. See Holton, supra. Regarding the third element of service connection, nexus, the Board finds that the evidence preponderates against the claim. The Board notes that in July 2016, the Veteran underwent a VA shoulder and arm conditions examination. However, the examiner only provided an opinion regarding the Veteran's left shoulder. The examiner noted abnormal findings for the Veteran's "non-claimed extremity," but found that the condition was outside the scope of the examination and no nexus statement was provided. In November 2018, the Board remanded the matter to obtain a VA examination for the Veteran's right shoulder disability. However, as previously noted, neither the RO nor the examination contractor was able to contact the Veteran. Accordingly, the examination requests were canceled. Additionally, the claims file lacks any medical evidence linking the Veteran's right shoulder condition to his active duty service. Thus, the Board finds that the third element of direct service connection is not met. See Holton, supra. In addition, nexus is not demonstrated by continuity of symptomatology since service. See 38 U.S.C. §§ 1112, 1113, 1137; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). The first evidence of record showing a diagnosis of right shoulder osteoarthritis is an October 2011 VA primary care note. See Jul. 2015 CAPRI, p. 29. There are no prior records showing osteoarthritis, or any other right shoulder condition. Further, the Veteran's May 1971 separation examination indicates a normal finding for the upper extremities. See Mar. 2015 STR Medical, p. 4. The Veteran's service treatment records are silent for treatment for a right shoulder condition. Accordingly, the Board finds that a continuity of symptomatology of the Veteran's disability of the right shoulder has not been shown. The first report of a right shoulder condition was shown approximately 40 years after separation from duty and his separation examination noted "normal" for the upper extremities. Accordingly, as the Board finds that it is less likely than not that the Veteran's right shoulder disability is related to service and that a continuity of symptomatology is not shown, service connection is not warranted. 2. Entitlement to service connection for blindness 3. Entitlement to service connection for blurred vision The Veteran contends that he is entitled to service connection for blindness and blurred vision. See Feb. 2015 Fully Developed Claim. Regarding diagnosis of a current disability, the Board finds that there is insufficient evidence of record to satisfy this element for both blindness and blurred vision. There are no VA examinations of record pertaining to vision impairment or eye conditions. Again, the Board notes that the November 2018 remand directed to RO to schedule the Veteran for such examinations. However, both the RO and the examination contractor were unable to contact the Veteran and the requests were canceled. The Veteran did report blurred vision in February 1999 and October 2004. See Oct. 2015 Medical Treatment Record Non-Government Facility, p. 1; Oct. 2004 CAPRI, p. 233. However, more recently, in October 2011, April 2013, and March 2014 treatment records, the Veteran denied blurred vision. See Aug. 2017 CAPRI, pp. 11, 37; Aug. 2016 Medical Treatment Record Non-Government Facility, p. 16. Additionally, the two instances in which the Veteran noted blurred vision took place years before the appeal period for the claims began in February 2015. Regarding blindness, it appears that the Veteran contends that he was blinded during service by J85 jet fuel. See Oct. 2015 Notice of Disagreement (NOD). However, it appears that the Veteran also recovered during service; he noted that he could not see anything for two days. Id. at 6. The Veteran made the same contention regarding his claim for blurred vision. Id. Because the Veteran contends that these two issues resolved during service, they would not qualify as a "current disability" for VA disability compensation purposes. See McClain, supra. There is no further evidence of record indicating that the Veteran has a current disability of blindness or blurred vision. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. Here, for the reasons set forth above, the overall evidence of record weighs against a finding of blurred vision and blindness at any time during the appeal period. Accordingly, the Board finds that the first element of service connection is not met and that service connection is not warranted. See Holton, supra. 4. Entitlement to service connection for a lower back disability The Veteran also contends that he is entitled to service connection for a lower back disability. See Feb. 2015 Fully Developed Claim. Regarding diagnosis of a current disability, the Board finds that there is insufficient evidence of record to satisfy this element of service connection. There are no VA back conditions examinations of record that address the Veteran's claimed lower back disability. Again, the Board notes that the November 2018 remand directed to RO to schedule the Veteran for a lower back examination. However, the both the RO and the examination contractor were unable to contact the Veteran and the request was canceled. The claims file contains no medical evidence of a current lower back disability and service treatment records are silent as to complaints for the condition. The Veteran's May 1971 separation examination reflects a normal finding for the spine. See Mar. 2015 STR Medical, p. 4. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. After review of the claims file, there is no competent medical evidence of record indicating that the Veteran has a current lower back disability. Accordingly, the Board finds that the first element of service connection is not met and that service connection is not warranted. See Holton, supra. Additional Considerations The Board recognizes the recent decision in Saunders v. Wilkie that "pain alone can serve as a functional impairment and therefore qualify as a disability." 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). However, the Court cautioned that a veteran cannot demonstrate service connection simply by asserting subjective pain; rather, "[t]o establish the presence of a disability, [a] veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. at 1367-68. The Board has considered this recent holding and finds the preponderance of the evidence weighs against a finding that the Veteran's claims of vision impairment (blindness, blurry vision) and a back condition have not risen to the level of functional impairment in earning capacity, thus, Saunders is not relevant here. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.