Citation Nr: 21042152 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-17 797 DATE: July 12, 2021 ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a right shoulder condition is denied. FINDINGS OF FACT 1. The evidence does not support a finding that there exists a nexus between the Veteran's current low back condition and his military service. 2. The evidence does not support a finding that there exists a nexus between the Veteran's current right shoulder condition and his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from May1985 to May 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). The Veteran filed a timely notice of disagreement (NOD) and subsequent Appeal to the Board, VA Form 9, which is under the traditional or "Legacy" appeal system. The Board notes that the Veteran also simultaneously filed a request to appeal these issues under the new Appeals Modernization Act (AMA) system when he sought to opt-in to the Rapid Appeals Modernization Program (RAMP), selecting the Higher Level Review (HLR) option. Thereafter, the AOJ issued a rating decision which continued the denial of the Veteran's claim related to his low back condition. The Veteran then filed a "Decision Review Request: Board Appeal (Notice of Disagreement)" (VA Form 10182). However, it was later determined that the Veteran's 10182 was not timely filed, and the AMA related decision and appeal are invalid. Thus, the matter continues to be appealed under the traditional or "legacy" appeal review system. The Veteran and his representative are aware of and concur with this finding. See, Hearing Transcript, page 2. The Veteran and his representative appeared for a Board hearing with the undersigned Veteran's Law Judge (VLJ) in April 2021 (Board Hearing). A copy of the transcript for that hearing has been associated with the Veteran's claims file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a low back condition. The Veteran seeks service connection for a low back condition and contends that his low back condition started while he was in the military. The Board finds that new and material evidence was received to re-open the claim. At different times the Veteran claims that his low back condition was caused when he tried to move some heavy equipment (See. e.g., January 23,1987 STR entry, and June 2012 VA Back examination, section 2, medical history); and later that he injured his back as the result of a motor vehicle accident (MVA) he was involved in while in the service (See Hearing Transcripts, page 3). VA concedes that the Veteran had a diagnosis of low back strain during service. However, the evidence does not support a finding that his current low back condition was incurred in or caused by his military service. The Veteran's service treatment records (STRs) record that the Veteran did complain of and seek treatment for low back strain intermittently from December 1985 through January 1988. He claimed low back problems after he was pushing a heavy air conditioner and his back was injured. See STR physical therapy entry January 13, 1988. His STRs also record that the Veteran was involved in a MVA on August 31, 1988, when he claims he fell off his motorcycle. There are numerous records of medical treatment related to this incident, including form the emergency department where he was taken immediately after the accident, and numerous follow-up treatment entries, including orthopedic consults. However, none of the STR record related to this MVA indicate any injury to the Veteran's back or right shoulder, except for "road rash" from the accident. There are only a few entries where the Veteran complained of left shoulder injury, which also includes an X-ray taken of his left shoulder and left hand. His left hand suffered a fracture for which he underwent surgery. There was no additional follow-up for his left shoulder except to change bandages from road rash. Over the course of several months following the MVA he did not complain of any back injury. His separation physical documents do not show any reference to a back injury or pain, though several other issues were noted, including the left-hand injury from the accident. During his Board Hearing, the Veteran stated that his low back pain began during his military service due to the MVA, but he did not mention any other cause for the injury, including from moving heavy equipment. See Hearing Transcripts, page 3. He stated that his low back pain continued throughout the rest of his military service and after, continuously. The Veteran also stated that after he separated from the military, his occupation was in construction. The Veteran was provided a VA examination for his back in July 2012 in which the VA examiner identified the in-service diagnosis of low back strain but did not find a current diagnosis of a low back condition. The VA examiner based this on his findings of the Veteran exhibiting no pain on range of motion (ROM) tests, no radiculopathy exhibited, and diagnostic tests. Without a diagnosis of a current disability, the RO denied the claim. The evidence also shows the Veteran did not seek treatment for a back condition until 2013 at the earliest. There were no records of treatment in the year after he separated from service. Based on the above, the Board finds that while the Veteran did seek treatment related to low back pain for a limited time during his military service, the record shows that he did not continue to make complaints after his MVA or after he separated from service. As a construction worker, the Board would expect the Veteran to make additional complaints of back pain problems if they existed as that would most likely impact his ability to work. The record is silent for any of those complaints. The Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning his medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here the Board finds the Veteran's testimony to be conflict which excludes one set of statements form the other during his June 2012 VA examination he stated his in service back problems began due to his trying to move heavy equipment without reference to his MVA, but during his Board testimony, he asserted exactly the opposite, the his back problems were due to his MVA only, without reference to his moving heavy equipment during his service. Further, his Hearing statement that he had continuous back pain during his entire period of service and thereafter is inconsistent with the rest of the record which does not indicate he had back problems until 2013 at the earliest. The Board finds the written record of his treatment and lack thereof to be more probative than his verbal statements. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Veteran's claim for entitlement to service connection for a low back condition is denied. 2. Entitlement to service connection for a right shoulder condition. The Veteran claims that his right shoulder condition, is related to his military service. VA concedes that the Veteran underwent right shoulder surgery after his service and is new and material evidence to re-open the claim. The Veteran's STRs do not show any complaints of, treatment for, or diagnosis of any right shoulder condition during his military service. During his Board hearing the Veteran claims that he injured his right shoulder as a result of his 1988 MVA. Instead the STR records indicate that the Veteran did complain initially of left shoulder pain for which he was given an X-ray, which did not show any damage. The Veteran did not complain of left or right shoulder injury after that, except as related to the healing of his "road rash" from the accident which took several weeks to heal. Further, there is no record in evidence which shows the Veteran complaining of right shoulder pain or other problems until at least 2013. This is around 25 years after he separated from service during which he worked in the construction field as a carpenter. Review of treatment records from the VA Healthcare System show you had rotator cuff repair surgery of the right shoulder in March 2015. Based on the above, the Board finds that there to be a lack of evidence to support a nexus between his current right shoulder disability and his military service. The fact that there are no recorded complaints of right shoulder injury during hiss military service, including as a result of his 1988 MVA, is high probative. This is particularly so in conjunction with the long period of time after he left service before the record shows any complaints of or treatment for a right shoulder injury. While the Veteran is noted to have this current disability, the competent and credible evidence does not establish the connection or nexus of this condition with his military service. The Board has considered the Veteran's lay statements concerning this issue. The Veteran is competent to provide testimony relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159 (a). However, the Board finds the written record of his medial treatment to be more consistent and probative than his verbal statements. (Continued on the next page) In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. The claim for entitlement to service connection for a right shoulder condition is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.