Citation Nr: 21030584 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-10 657A DATE: May 19, 2021 ORDER Entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for a left elbow disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a left foot disability is granted. FINDINGS OF FACT 1. A current bilateral shoulder disability did not have its onset during the Veteran's active service, and is not otherwise etiologically related to such service; and, arthritis in either shoulder was not manifest to a compensable degree within one year of the Veteran's separation from service. 2. Left elbow, back, and left foot disabilities are at least as likely as not related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1112, 1131, 1137 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for a left elbow disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for entitlement to service connection for a left foot disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1979 to July 1986. These matters come before the Board of Veteran' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This case was previously before the Board, most recently in July 2020, at which time the issues currently on appeal were remanded for additional development. Service Connection Bilateral Shoulder Disability The Veteran has asserted that he has left and right shoulder disabilities that are related to his active service. Specifically, the Veteran has reported that the heavy labor involved in performing carpentry and masonry work during service caused his shoulders to become painful. He reported that his symptoms began in 1980, and that he has had symptoms ever since that time. The Veteran reported that he sought treatment for shoulder pain while he was in active service. At the outset, the Board notes that the Veteran's service treatment records (STRs) are unavailable for review. Following a July 2013 request for the Veteran's STRs, VA was informed that the Veteran's STRs and other service records were charged out to another agency on October 24, 1996, and that they were no longer available for review. Following additional development directed by the Board, additional attempts were made to obtain the Veteran's service records. However, those attempts were ultimately unsuccessful. As such, the records have been determined to be unavailable for review, and the Veteran has been notified of that fact. When told of the unavailability, the Veteran was informed that he could submit copies of his service records if he had them in his possession. However, the Veteran reported that he did not have copies of the records to submit in an effort to substantiate his claim. As the STRs have been deemed unavailable for review, verification of the Veteran's report of in-service treatment for his shoulders cannot be made. As such, the Veteran is competent to report when his shoulder pain began, and that he sought treatment for such during service. In light of the Veteran's military occupational specialty (MOS) during service of carpentry/masonry specialist, the Board finds the Veteran's reports of in-service shoulder pain to be consistent with the facts and circumstances of his service. As such, the Board finds the Veteran's statements that he first experienced shoulder pain during service, and sought treatment for such, to be credible. A review of the post-service medical evidence of record shows that in April 2004, the Veteran was seen at the VA Medical Center for pain in his feet. However, at that time, he also reported that he worked as a brick mason and had aches and pains in every joint. However, the Veteran did not specifically report pain in either shoulder at that time. Further, there is no indication that the Veteran reported that he first experienced shoulder pain during active service, and that it had continued since that time. In February 2011, the Veteran was seen by a private provider, at which time he reported joint pain. He reported that he worked as a drywall hanger. He did not specifically report pain in either shoulder at hat time. Further, the Veteran did not report that he first experienced shoulder pain during service, and that it had continued since that time. Physical examination of the shoulders revealed that they were nontender. The Veteran has continued to report chronic shoulder pain throughout the years. However, there is no indication from the record that the Veteran reported his shoulder pain began in service, and had continued since that time. An August 2019 X-ray of the left shoulder revealed mild to moderate acromioclavicular (AC) joint degenerative changes. In March 2020, the Veteran was afforded a VA examination of his shoulders. At that time, the Veteran reported that he was a carpenter and had to lift heavy equipment and concrete, dig ditches, and perform other related tasks during service. He reported that as a result, he eventually developed shoulder pain while in active service, and that he sought treatment for such. X-rays of the shoulders performed at that time were normal. The examiner diagnosed bilateral shoulder strain. The examiner opined that the Veteran's bilateral shoulder disability was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that the Veteran's STRs were inconclusive for reports of shoulder pain during service. The Board finds the March 2020 VA medical opinion to be inadequate for adjudication purposes. In this regard, the examiner relied solely on the lack of documentation of shoulder pain in the service records. However, the STRs have been determined to be unavailable due to no fault of the Veteran. As such, reliance on lack of documentation of shoulder pain in unavailable records is not sufficient to support the negative conclusion reached. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. In October 2020, an addendum VA medical opinion was obtained. At that time, the VA examiner review the record and cited to relevant evidence in the claims file. The examiner opined that the Veteran's bilateral shoulder disability was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the VA examiner noted that the Veteran's active duty work in carpentry and masonry (concrete) would conceivably have involved heavy lifting/carrying and overhead use of the shoulders, which could result in an acute shoulder strain. However, the examiner noted that the medical records were silent for any chronic bilateral shoulder complaints prior to 2004, approximately 18 years following his active service. Further, the examiner noted that a review of the Veteran's post-service occupational history showed employment in occupations that would involve heavy lifting/carrying and overhead use of the shoulders, such as brick mason and dry wall installer. The examiner noted that the current diagnosis of shoulder strain proximate in onset to the Veteran's post-service occupational labor. An additional addendum VA medical opinion was obtained in November 2020. At that time, the VA examiner noted that strains are acute and transitory and would resolve without residuals, and as such, are not considered chronic disabilities. The examiner noted that a chronic strain would require medical imaging and/or orthopedic surgery consultations documented a permanent anatomic pathology, which was not found in the case of the Veteran's shoulder. The examiner concluded that the Veteran's bilateral shoulder disability was at least as likely as not caused by post-service overuse and natural ageing. The examiner also noted that the August 2019 X-ray report showing that the Veteran had left shoulder AC joint degenerative changes did not change the medical opinions rendered. The Board finds that the October 2020 and November 2020 VA medical opinions are adequate, especially when read in conjunction with one another. In this regard, the examiners thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no medical opinion of record to the contrary. As such, the October 2020 and November 2020 VA medical opinions are the most probative evidence of record pertaining to the Veteran's bilateral shoulder disability. While the laypersons are competent to report observable symptoms, the Veteran is not competent to provide a medical opinion linking his current diagnosis of bilateral shoulder strain to his active service, as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Further, there is no indication from the record that the Veteran was shown to have arthritis in either shoulder that was manifest to a compensable degree within one year of his separation from active service. As such, presumptive service connection for a chronic disability is not warranted in this case. 38 C.F.R. § 3.309 (a). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a bilateral shoulder disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Left Elbow, Back, and Left Foot Disabilities The Veteran asserted that he has left elbow, back, and left foot disabilities that are related to his active service. Specifically, the Veteran has again reported that his MOS of carpentry/masonry specialist involved physical labor that caused him to experience left elbow, back, and left foot pain. He has also reported that he sought treatment for such while in active service. he has reported that he continued to experience symptoms of left elbow pain, back pain, and left foot pain since service. As discussed above, the Veteran's STRs have been determined to be unavailable for review through not fault of the Veteran. As such, the Veteran is competent to report that he first experienced left elbow, back, and left foot pain; and, that the symptoms have continued since that time. Moreover, the Board finds that the Veteran is credible in that regard. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Post-service medical evidence of record shows that the Veteran was seen by a private provider in February 2011, at which time he reported chronic left elbow pain that had increased in severity in the prior several weeks. The Veteran was noted to have left elbow arthritis and left elbow epicondylitis, and received an injection in his elbow to help with his pain. In October 2012, the Veteran was seen at the VA Medical Center for a "new patient" primary care visit. At that time, the Veteran reported experiencing chronic back, left elbow, and left foot pain. The exact timeframe regarding the onset of the Veteran's reported pain was not noted. However, the symptoms were noted to be chronic in nature. In January 2013, the Veteran was seen at the VA Medical Center podiatry clinic for a consultation. A that time, the Veteran reported chronic foot pain. A March 2013 X-ray revealed moderate hallux valgus deformity of the left great tow. The Veteran continued to report chronic left elbow, back, and left foot pain throughout the years. In March 2020, the Veteran was afforded VA examination for his left elbow, back, and left foot. At those examinations, the Veteran reported that he first experienced left elbow and back pain during active service as a result of his duties that involved carpentry, heavy equipment usage, concrete work, digging ditches, and other related tasks. He reported that he got treatment for his left elbow in service, and remembers an injury that caused him to have to wrap his elbow for a time. He reported that he developed bunions while in service as a result of wearing the combat boots provided. The Veteran reported that he has continued to experience left elbow, back, and left foot pain since service that has increased over the years. X-rays revealed arthritis in the left elbow. The examiner diagnosed left elbow arthritis, lumbar strain, and left foot hammer toes and hallux valgus. The examiner opined that it was less likely as not that he Veteran's left elbow disability, back disability, and left foot disabilities were incurred in or caused by the claimed in-service injuries, events, or illnesses. In so finding, the examiner noted that the STRs were inconclusive for left elbow, back, and left foot complaints during service. The Board finds the March 2020 VA medical opinions to be inadequate for adjudication purposes. In this regard, the examiner relied solely on the lack of documentation of left elbow, back, and left foot pain in the service records. However, the STRs have been determined to be unavailable due to no fault of the Veteran. As such, reliance on lack of documentation of left elbow, back, and left foot pain in unavailable records is not sufficient to support the negative conclusions reached. As the opinions are inadequate, they cannot serve as the basis of denials of entitlement to service connection On November 12, 2020, addendum VA medical opinions were obtained regarding the Veteran's left elbow, back, and left foot disabilities. At that time, the VA examiner opined that the Veteran's left elbow, back, and left foot disabilities were at least as likely as not incurred in or caused by the claimed in-service injuries, events, or illnesses. In so finding, the VA examiner noted that the Veteran had no left elbow, back, or left foot complaints prior to service, and had a current diagnoses of arthritis, lumbar strain, and left foot hallux valgus and hammertoes due to overuse and increased physical demand during active service. The examiner further noted that there was evidence of chronicity of symptoms since the Veteran's service. The Board finds that the November 12, 2020, VA medical opinions are adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that additional addendum medical opinions were obtained on November 23, 2020, from a different examiner than that who provided the prior November 12, 2020, medical opinions. Based on a review of the claims file, the November 23, 2020, examiner opined that the Veteran's left elbow, back, and left foot disabilities were less likely as not incurred in or caused by the claimed in-service injuries, events, or illnesses. While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the Board declines to accept the negative opinions provided by the November 23, 2020, examiner. In this regard, the Board may not remand for a VA medical opinion solely to controvert otherwise uncontroverted medical evidence favoring the appellant. Mariano v. Principi, 17 Vet. App. 305 (2003); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). While in this case, the November 23, 2020, VA opinions were not obtained at the direction of a Board remand, it does appear to have been obtained for the purpose of controverting otherwise uncontroverted medical evidence favoring the Veteran. The Board notes that positive opinions provided by the examiner on November 12, 2020, were already of record at the time of the request for the November 23, 2020, opinions. The claims of entitlement to service connection for left elbow, back, and left foot disabilities could have been granted at that time, at the very least a grant could have been supported by resolving reasonable doubt in favor of the Veteran. However, it appears as though the November 23, 2020, medical opinions were requested purely for the purpose of providing support for a denial of the claimed benefits. Accordingly, even if the November 23, 2020, medical opinions were adequate in all other respects, which they are not as they relied heavily on the lack of documentation of complaints in the STRs, which have been deemed unavailable through no fault of the Veteran; the November 23, 2020, opinions would be provided very little probative weight given that it appears they were obtained in an effort to controvert otherwise uncontroverted positive medical evidence of record. Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for left elbow, back, and left foot disabilities is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for left elbow, back, and left foot disabilities is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.