Citation Nr: 21039910 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-18 234 DATE: July 1, 2021 THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a right knee disability. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2001 to April 2003. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2021, the Veteran testified at a Board hearing held at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that he suffers from a lumbar spine disability as a result of an injury he sustained in service. Specifically, the Veteran asserts that he injured his back carrying a fellow service member at Ft. Sill, Oklahoma in September 2001. Service treatment records reveal that the Veteran was seen for myofascial paraspinal in August 2001. Additionally, the in his February 2003 separation examination, the Veteran reported a history of back problems and indicated that he was currently taking motrin. In a December 2014 psychological examination, the Veteran explained to the examiner that he had suffered a back injury in 2009 due to a motor vehicle accident, for which he filed a worker compensation claim. A VA treatment record from January 2015 reveals ongoing back pain complaints and a December 2015 MRI of the spine was unremarkable. In order to determine the nature and etiology of any claimed back condition, the Veteran was afforded a VA examination in November 2017. The examiner recorded a diagnosis of degenerative arthritis of the spine but opined that the Veteran's current back disability was not at least as likely as not to his noted in-service back injury. While acknowledging the Veteran's back injury in service, based upon the medical records and peer reviewed medical literature, the examiner stated that there was insufficient evidence to suggest a positive nexus. In support of this conclusion, the examiner cited a lack of complaints or treatment for back pain from separation in February 2003 to 2015. Finally, the examiner explained that the Veteran's current back disability was more likely related to aging and general wear and tear over time. The Veteran testified at the January 2021 hearing that not only had he injured his back in service, but that he had experienced lumbar pain since separation. The Veteran explained that he was unaware he could seek treatment from VA until many years after service, and that this accounted for the lengthy period of time in between separation and medical notations of his disability. Specifically, he claims to have been discouraged from obtaining VA treatment after being turned away from a VA facility prior to 2015. VA treatment records do confirm that the Veteran had complained of being denied treatment at VA facilities prior to 2014. See, e.g. December 2014 VA treatment record. Therefore, the Board finds that the Veteran's assertions regarding the delay in treatment to be credible. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran also testified that he believed that his 2009 motor vehicle accident injured a separate and distinct part of his back, and that that injury was not related to the back disability for which he was currently seeking compensation. However, the Veteran is not competent to opine as to the etiology of his current back disability. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As the November 2017 VA examiner does not address the Veteran's contentions of continuing symptoms since service, the Board finds that a new VA addendum opinion which addresses these contentions is necessary. 2. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that he suffers from a right shoulder disability as a result of an injury he sustained in service. Specifically, the Veteran asserts that he injured his right shoulder when he was slammed to the ground during an altercation with military police during a barracks inspection. See January 2021 Board hearing. A June 2002 service treatment record shows diagnostic testing for a right humerus. In his February 2003 separation examination, the Veteran reported a history of shoulder problems and indicated that he was currently taking motrin. In order to determine the nature and etiology of any claimed right shoulder condition, the Veteran was afforded a VA examination in November 2017. The examiner recorded a diagnosis of shoulder strain but opined that the Veteran's current right shoulder disability was not at least as likely as not to his noted in-service shoulder injury. While acknowledging the Veteran's shoulder injury in service, based upon the medical records and peer reviewed medical literature, the examiner stated that there was insufficient evidence to suggest a positive nexus. In support of this conclusion, the examiner cited a lack of ongoing shoulder complaints since service. As noted above, the Veteran testified at the January 2021 hearing that not only had he injured his right shoulder in service, but that he had experienced shoulder pain since separation. The Veteran explained that he was unaware he could seek treatment from VA until many years after service, and that this accounted for the lengthy period of time in between separation and medical notations of his disability. Specifically, he claims to have been discouraged from obtaining VA treatment after being turned away from a VA facility prior to 2015. VA treatment records do confirm that the Veteran had complained of being denied treatment at VA facilities prior to 2014. See, e.g. December 2014 VA treatment record. Therefore, the Board finds that the Veteran's assertions regarding the delay in treatment to be credible. See Jandreau, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As the November 2017 VA examiner does not address the Veteran's contentions of continuing symptoms since service, the Board finds that a new VA addendum opinion which addresses these contentions is necessary. 3. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he suffers from a right knee disability as a result of an injury he sustained in service. Specifically, the Veteran asserts that he injured his right shoulder when he was slammed to the ground during an altercation with military police during a barracks inspection at Ft. Sill, Oklahoma in July 2002. In order to determine the nature and etiology of any claimed right knee condition, the Veteran was afforded a VA examination in November 2017. The examiner recorded a diagnosis of a knee strain, but opined that the Veteran's current right knee disability was not at least as likely as not to his noted in-service shoulder injury. While acknowledging the Veteran's shoulder injury in service, based upon the medical records and peer reviewed medical literature, the examiner stated that there was insufficient evidence to suggest a positive nexus. In support of this conclusion, the examiner cited a lack of ongoing knee complaints since service. As noted above, the Veteran testified at the January 2021 hearing that not only had he injured his right shoulder in service, but that he had experienced shoulder pain since separation. The Veteran explained that he was unaware he could seek treatment from VA until many years after service, and that this accounted for the lengthy period of time in between separation and medical notations of his disability. Specifically, he claims to have been discouraged from obtaining VA treatment after being turned away from a VA facility prior to 2015. VA treatment records do confirm that the Veteran had complained of being denied treatment at VA facilities prior to 2014. See, e.g. December 2014 VA treatment record. Therefore, the Board finds that the Veteran's assertions regarding the delay in treatment to be credible. See Jandreau, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).] As the November 2017 VA examiner does not address the Veteran's contentions of continuing symptoms since service, the Board finds that a new VA addendum opinion which addresses these contentions is necessary. The matters are REMANDED for the following action: 1. Obtain any outstand and relevant VA treatment records. Should such exist, associate them with the claims file. 2. Return the claims folder and a copy of this remand to the November 2017 VA examiner or a suitable substitute for the purpose of obtaining addendum opinions regarding the etiology of the Veteran's back, right shoulder, and right knee disabilities. New examinations are not required, but if the examiner(s) determines that such are necessary to answer the following, they should be provided. The examiner(s) should address the following: Regarding the lumbar spine disability: Whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's claimed lumbar spine disability had its onset in service or is otherwise related to service, The examiner's attention is directed to the document in-service back injury and complaints. When offering this opinion, the examiner must discuss the Veteran's credible assertion that he experienced back pain since service but did not seek VA treatment until recently because he felt discouraged from doing so. The examiner is also asked to address the Veteran assertion that his 2009 automobile accident merely worsened his pre-existing condition. Regarding the right shoulder disability: Whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's claimed right shoulder disability had its onset in service or is otherwise related to service. When offering this opinion, the examiner must discuss the Veteran's credible assertion that he experienced right shoulder pain since service but did not seek VA treatment until recently because he felt discouraged from doing so. Regarding the right knee disability: Whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's claimed right knee had its onset in service or is otherwise related to service. When offering this opinion, the examiner must discuss the Veteran's credible assertion that he experienced right knee pain since service but did not seek VA treatment until recently because he felt discouraged from doing so. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran and his attorney a Supplemental Statement of the Case and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.