Citation Nr: 21032849 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-35 593A DATE: May 28, 2021 REMAND Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to March 1988. These claims were previously before the Board in January 2020 but were remanded for further development and consideration including especially to obtain all outstanding treatment records relevant to these claims, also records of inpatient treatment the Veteran reportedly had received during his service at the 97th General Hospital in Frankfurt, Germany, also to try and verify whether there was any single-vehicle military petroleum (or other fuel transportation truck) accident in Germany while he was stationed there, and then to have him undergo a VA examination for medical opinions concerning the origins of his claimed disabilities especially in terms of whether consistent with the type of injuries he alleges to have sustained in Germany in the alleged trucking accident. VA has made several attempts to obtain clinical records for possible hospitalization of the Veteran at the U.S. Army 97th General Hospital. A May 2020 response to VA's request for records from the National Personnel Records Center (NPRC) reflects that, at the time, follow-up was unable to be done because of "NPRC minimum staffing". VA should make another attempt to obtain any pertinent records after clarification from the Veteran as to where he was allegedly hospitalized. The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There are various locations given for the claimed in-service hospitalization. It has been alleged to have occurred in "Freeburg", which the Board assumes is a misspelling of Friedberg, Germany (see January 2012 VA Form 21-526), or near Nuremberg, Germany (see February 2012 VA Form 21-4138), or near Frankfurt, Germany (see September 2013 attorney correspondence). There are various dates given for the claimed accident/hospitalization. The Veteran initially claimed it occurred in 1984 or 1985 (see December 2011 and January 2013 VA Forms 21-4138), but later stated that it occurred between October 1981 to March 1982 (see January 2017 VA Form 27-0820, January 2014 buddy statement, and July 2016 VA Form 9). There are different facilities given for the alleged hospitalization. The Veteran initially indicated that he was hospitalized at a civilian facility (see January 2012 VA Form 21-626) but also stated that it was a military facility (see September 2013 attorney correspondence). The Board finds that he should reasonably remember if he was treated at a military hospital (i.e., personnel would be in U.S. military uniforms) or a civilian hospital (i.e., staff would be German civilians). The Veteran's attorney has stated that, at the time of the accident, the Veteran was assigned to a Signal unit (see September 2013 correspondence); this would put the accident in 1981 and 1982. The S1 (Administration Officer) for the Veteran's unit would reasonably have made a list of "hospitalized" service members and the dates of hospitalization. In sum, after the Veteran provides more definitive information as to the type of treatment facility, the location, and year, VA should attempt to obtain unit records, and if the treatment facility was U.S. Army in-patient records from the military hospital. Adequacy of Examinations Examinations/opinions were procured in November 2020. The Disability Benefit Questionnaires (DBQs) contain the opinion of the examiner that the Veteran does not have current disabilities that are indicative of a crushing injury (by a vehicle) like he claims to have sustained during his service. His attorney contends that the examiner did not consider that the Veteran has reported that he was first thrown from the vehicle prior to being crushed or his complaints of knee pain/diagnosis. As the claims are being remanded for a further records search, the examiner should provide supplemental opinions. Credibility While the Veteran is competent to state that he injured himself in service, competency is not the same as credibility. Moreover, only if evidence is both competent and credible is it ultimately probative. Given his inconsistencies in recalling the circumstances of his claimed injury in service including specifically in terms of where and when it occurred and where treated in the aftermath, his mere assertions alone are insufficient upon which to find that his claimed injury in service occurred. The Board finds it noteworthy that the Veteran has stated that he has a prior arrest for making a fraudulent automobile insurance claim. Thus, he has a history of false statements for financial gain. In the alternative, he has stated that he served 10 days' time and "took the charge for his ex-wife", which is also fraudulent if he lied to law enforcement to protect her. The Board also sees the Veteran has reported to VA clinicians that he served in Iraq for two months and in "desert storm" (see March 2010 and February 2015 VA clinical records); however, he separated from service in March 1988, which was more than a year prior to Desert Shield/Desert Storm, and his service personnel records (SPRs) are unremarkable for service in Iraq. Thus, he has been less than credible concerning the circumstances of his service. The Veteran contends that the alleged injuries (to include a fractured collarbone, buckling and swelling of the knees) occurred in 1981, 1982, 1984, or 1985. The Board finds it noteworthy that in May 1984, the Veteran successfully completed air assault training and was awarded the air assault badge, which can reasonably be expected to involve use of the shoulder and legs because air assault training includes rigging equipment, running, and a rappelling phase. Moreover, records note that he passed physical fitness tests in February 1987 and September 1987 (which would include a push-up component and a running component), and his Enlisted Evaluation Report for the period from April 1987 to March 1988 (after the claimed injuries) reflects his rater's opinion that the Veteran's "physical abilities are outstanding", and also contains his endorser's opinion that the Veteran "is one of the most physically fit soldiers in the platoon." This all is against a finding of chronic physical impairment since 1981, 1982, 1984, or 1985. Right Shoulder The claims file includes a September 2019 opinion by Physician's Assistant B. Spangenberg that the Veteran's right shoulder conditions of AC joint arthritis, glenohumeral joint arthritis, and supraspinatus tendinosis are related to military service. Her rationale was the Veteran's military occupation, the lay statements, and the clinical records, are consistent with a fractured clavicle, and he has no other reported injuries to the right shoulder which would account for this. She did not provide rationale as to how his military occupation, rather than his post-service occupation, would account for a shoulder injury, and her opinion relies on the self-reported history of an injury in service, and chronic ongoing symptoms following service. She failed to discuss the Veteran's post-service employment that included frequent heavy lifting, and his 1994 right shoulder dislocation on the job. The Board finds that the opinion lacks sufficient rationale and basis upon which to grant service connection, and, at this time, any contention as to continuity of symptoms lacks credibility. The Veteran should provide clinical records and/or worker's compensation records to VA as they might provide evidence of the Veteran's shoulder condition in closer proximity to service than the current records. Back The earliest VA clinical evidence of back complaints is in August 2011, at which time, the Veteran stated that he had bad back pain, that he had been in a car accident on July 13, 2011, and that he would like medication. VA informed the Veteran that he needed to get the ER record from the accident to see the findings; however, they do not appear to be associated with the claims file. The Veteran should provide these records or authorization for VA to obtain them as they may provide pertinent reports of his back prior to his accident, for example, that he had a long history of back complaints. Legs When the Veteran initially sought VA treatment for right knee pain in March 2010, he stated that it was run over by a truck in the army, it did not bother him for a long time, and it began to bother him in approximately 2008. In June 2010, he reported that both legs had been run over in service, but he did not have any fractures. In February 2015, he reported that his right leg had been fractured when it was run over. A November 2020 DBQ report reflects that the Veteran does not have a leg muscle disability which is at least as likely as not due to service, but the report does not adequately discuss his complaints of knee pain, and radiology finding of mild spurring on the right patellar articular surface. Thus, a supplemental opinion may be useful. In addition, if x-rays are negative for a prior fracture, or alternatively positive for a prior fracture, it should be noted in the report. Accordingly, these claims are REMANDED for the following still additional development and consideration: 1. Ask the Veteran to complete a VA Form 21-4142 for: a) all clinical (to include emergency department) records related to his July 2011 car accident with back injury; b) all clinical (to include emergency department) records related to his 1994 shoulder dislocation and all other shoulder dislocations; and c) 1994 workman's compensation claims and/or all other workman's compensation claims. Make two requests for the authorized records from the providers unless it is clear after the first request that a second request would be futile. 2. Request the Veteran to clarify whether: a) the claimed accident in service occurred in approximately 1981 to 1982 or, instead, in approximately 1984 to 1985; and b) whether the claimed hospitalization in service was at a civilian (i.e., German) hospital or a U.S. Army hospital in Germany. 3. If the Veteran clarifies that the accident happened in 1981 or 1982, attempt to obtain S1 (Administration Officer) records for Headquarters and Headquarters Company (HHC), 51st Signal Battalion, 93rd Signal Brigade, VII Corps for October 1981 through March 1982, which list hospitalized service members. If the Veteran clarifies that the accident happened in 1984 or 1985, attempt to obtain S1 records, for HHC, 1st Battalion, 32nd Armor Regiment, 3rd Armored Division, Germany, which list hospitalized service members. 4. Thereafter, based on the Veteran's clarifications, S1 records, and/or if the Veteran's alleges hospitalization at a U.S. military hospital, attempt to obtain inpatient treatment for the pertinent time period. Document all requests for these additional records, as well as all responses, in the claims file. Also appropriately notify the Veteran and his attorney if unable to obtain these additional records 5. Also, attempt to verify any single-vehicle military petroleum truck (or other fuel transportation truck) accident in Germany based on clarification from the Veteran as to his unit and the approximate time period. 6. Thereafter, obtain supplemental opinions to the 2020 DBQs. This includes providing additional rationale regarding the opinions in the 2020 DBQs that the Veteran does not have a back, leg, or shoulder disability which are as likely as not related to service. In the alterative, after reviewing that and all other relevant evidence, if the examiner finds that it is as likely as not (50 percent or greater probability) the Veteran has a back, leg, or shoulder disability related to service, the examiner should provide rationale for the conclusion(s). The examiner should consider the Veteran's claim that he was first thrown from his vehicle before it rolled over him (i.e., impacts, and then roll-over). In providing this necessary rationale, the examiner must consider the pertinent evidence of record and whether it supports or weighs against a significant injury in service or chronic symptoms since service, including: a) any newly obtained relevant records; b) the alleged onset date of the injuries/accident; c) that the Veteran was able to successfully complete air assault training in May 1984; d) that the Veteran passed physical fitness tests in February 1987 and September 1987; e) that the Veteran's Enlisted Evaluation Report for the period from April 1987 to March 1988 (after the claimed injuries) reflects his rater's opinion that the Veteran's "physical abilities are outstanding" and also the endorser's opinion that the Veteran "is one of the most physically fit soldiers in the platoon"; f) the Veteran's post-service employment which included bus driving, factory work which included frequent lifting and stacking of 55 pounds, and nursing aide work which included frequent lifting of 180 pounds (see SSA records); g) the Veteran's report of a dislocated shoulder at work in 1994; h) the Veteran's March 2010 statement that his right knee began to bother him in 2008; i) the Veteran's report of a car accident in July 2011 causing back complaints; j) a June 2019 radiology report of bilateral knee spurring; and k) whether radiology records reflect a prior fracture of the right leg. If another examination/diagnostic test is needed to render an adequate rationale, the Veteran should be scheduled for such; however, this is left to the examiner's discretion. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale -preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.