Citation Nr: 21031166 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-03 936 DATE: May 20, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left shoulder disability is denied. FINDINGS OF FACT 1. The weight of the evidence of record is against a finding that a currently diagnosed low back disability had onset in active service or is otherwise causally related to active service. 2. The weight of the evidence of record is against a finding that a currently diagnosed left shoulder disability had onset in active service or is otherwise causally related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 2. The criteria for entitlement to service connection for left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1989 to October 1994. Afterward, he was a member of the Army National Guard (ARNG) and a State ARNG, during which he was activated from November 2008 to May 2009. The Agency of Original Jurisdiction (AOJ) determined that the characterization of the Veteran's last period of active service was other than honorable. See 02/07/2018 Administrative Decision. The Veteran did not appeal that determination. Nonetheless, it does not impact his entitlement to service connection solely for purposes of treatment, where applicable. The Veteran perfected an appeal from a December 2012 rating decision that denied his claims. See 12/27/2012 Rating Decision. On initial review of this case the Board remanded the case to the AOJ for additional development. See 12/22/2015 BVA Decision. Upon return of the case to the Board, the Board found less than substantial compliance with the remand directive and remanded the case again. See 10/14/2020 BVA Decision. As discussed further below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The prior remand also included the issue of service connection for a gastrointestinal disorder. While the case was on remand the AOJ granted the claim. See 02/22/2021 Rating Decision Narrative. There is no indication in the claims file that the Veteran has appealed either the assigned initial rating or effective date. Hence, the GI issue is not before the Board and will not be discussed in this decision. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service Connection Legal Requirements for Service Connection Generally, to establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may 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). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must fully consider the lay evidence of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (stating that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a low back disability is denied. In addition to the general legal requirements set forth above, arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). At the Board hearing, the Veteran testified that while based in Germany from 1992 to 1993 his back was injured from a hard helicopter landing during a field exercise. He testified further that it was a foggy day, and that a young copilot was at the controls. The Veteran's testimony suggests that the hard landing resulted from poor airmanship. He testified that he, the other troops on board, and the crew were shaken. In response to his representative's question that asked why he did not get treatment, the Veteran responded that all aboard agreed that "that didn't happen...." See 09/22/2015 Hearing Testimony, P. 6. He did seek treatment from the flight surgeon the next day because he was stiff and sore, and the flight surgeon handed he and another troop a bottle of 800 mg Ibuprofen. The flight surgeon told him that he could take it forever, and he has been using it ever since. Id. P. 6-7. He did not seek treatment from VA until 2011 because he was concerned that seeking treatment would adversely affect his employment. He worked in security in a position that required that he be armed. The Veteran was not afforded an examination as part of the initial adjudication of his claim. The Board determined that his hearing testimony, combined with the lack of adequate medical evidence to decide the claim triggered an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 C.F.R. § 3.159(c)(4). Hence, the Board remanded for that purpose. In the examination report (07/21/2020 C&P Exam, 5th Entry) the examiner noted the Veteran's report of sustaining a low back injury from a hard helicopter landing, that he could not move the next day due to pain, and that he had experienced chronic pain ever since. The examiner diagnosed a lumbar strain and opined that it was not at least as likely as not that it was related to the Veteran's active service. The examiner's sole rationale was that there were no in-service treatment records related to the Veteran's back. See 07/21/2020 C&P Exam, 4th Entry, P. 3. The Board remanded the case again, as it appeared that the examiner did not consider the Veteran's lay report of his history. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (2006). Hence, the Board remanded for additional input from the examiner. In an initial addendum the examiner noted that the Veteran's lay reports were considered, but the absence of documented treatment was again emphasized. See 12/03/2010 C&P Exam. The AOJ determined that the rationale was still inadequate and returned the report. See 12/04/2020 Deferred Rating. In the second addendum, the examiner explained more fully why the Veteran's reported history did not provide a causal nexus with his service. In addition to the absence of in-service treatment records, the examiner noted the fact that the Veteran's back was assessed as normal at separation. The examiner noted further that medical conditions generated from trauma, including from accidents, generally present with initial symptoms at the outset, such as pain, numbness, tingling, burning sensation, and limited motion. The examiner noted that the Veteran's history was absent those symptoms in service and for many years after service. See 02/11/2021 C&P Exam. The Board is aware that the absence of contemporaneous medical documentation, alone, is not a valid basis for rejecting lay evidence. Buchanan, 451 F.3d 1331, 1335-36. The lay evidence must be assessed for reliability and credibility. The Board is not convinced of the reliability of the Veteran's lay evidence, to include his testimony. His testimony did describe some of the initial symptoms that the VA examiner said would be present immediately following back trauma, namely, stiffness and pain. However, even assuming that the helicopter incident occurred, there simply is no credible evidence that he experienced chronic symptoms as a result. The Veteran did not testify that he saw a medic, but a flight surgeon; a flight surgeon who did not document treatment and dispensation of medication. The Veteran was on flight status, which meant that he was subject to periodic flight physicals, as is documented in his service treatment record (STRs). The Board finds it doubtful that a flight surgeon would perform his duty in such a cavalier manner. His April 1992 flight physical notes that he reported a negative history, and he was assessed as normal in all areas. See id., 4th Entry, P. 52-54. The Veteran indicated on his October 1994 Report of Medical History for his examination to enlist in the ARNG, which was immediately at the end of his active service, that he had no history of recurrent back pain, and his spine was assessed as normal. See 12/19/2014 STR-MED, 3rd Entry, P. 18-22. Further, his STRs note that he was prescribed Ibuprofen for treatment from a rib fracture, not a back injury. Id. P. 18. He sought treatment for a number of other complaints where he also could have reported chronic back pain. The Veteran continued to deny a history of back pain during his second tour of active service. See id., 4th Entry, P. 19. The Board affords more weight to the Veteran's report of his history during his active service than to more recent assertions. In the 2020 remand the Board noted an August 2017 lumbar spine x-ray examination report showing, as compared to an August 2014 x-ray, moderately advanced degenerative disc disease (DDD) at L5-S1. There is no evidence of record that lumbar spine arthritis manifested at least to a compensable degree within one year of the Veteran's service. The evidence set forth above constrains the Board to find that the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53-56; see also 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left shoulder disability is denied. Concerning the left shoulder, the Veteran testified that he injured it between 1992 and 1994 practicing mixed martial arts when he was thrown down hard. He did not go to sick call because of his duties. Later in his testimony he said that he was not sure, but he believed that he went to sick call. Hearing Testimony, P. 11 et seq. A VA examination report reflects that the left shoulder disorder was diagnosed as a shoulder strain. The same VA examiner rendered findings and opinions on the left shoulder that were essentially the same as those for the Veteran's back. See 07/21/2020 C&P Exam, 2nd and 4th Entries; 02/11/2021 C&P Exam. The earlier discussion on the reliability and veracity of the Veteran's lay testimony is incorporated here by reference. As is the case with the Veteran's back, there are no entries in his STRs that are related to complaints of or treatment of shoulder symptoms. At physical examinations in 1992, 1994, and 2009, and separation from his second tour of active service, the Veteran denied any history of a shoulder injury or pain. His upper extremities were assessed as normal. See 12/19/2014 STR-MED, 3rd Entry, P. 18-22; 4th Entry, P. 19, 52. He sought treatment for other complaints but made no mention of shoulder complaints. Hence, there are no entries in the STRs that corroborate that part of the Veteran's testimony. Although the Veteran's lay testimony is fully competent, see 38 C.F.R. § 3.159(a)(2), the Board finds it unreliable. Hence, based on the incorporated discussion and the discussion here, the Board is constrained to find that the preponderance of the evidence is against the claim. 38 C.F.R. §§ 3.303. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53-56; see also 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.