Citation Nr: A25035244 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240103-410009 DATE: April 16, 2025 ORDER Entitlement to service connection for a low back disability, diagnosed as lumbosacral strain and chronic lumbar strain, is granted. Entitlement to service connection for a right shoulder disability, diagnosed as right shoulder strain, is granted. FINDINGS OF FACT 1. The Veteran's low back disability is at least as likely as not related to overuse injury that occurred during active duty. 2. The Veteran's right shoulder disability is at least as likely as not related to overuse injury that occurred during active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303 (2024). 2. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303 (2024). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2012 to June 2017. In May 2023, a VA Form 20-0995, Decision Review Request: Supplemental Claim, was received, which requested readjudication of the issues on appeal, most recently addressed in a January 2023 rating decision. In June 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claims based on the evidence of record at the time of that rating decision. In January 2024, a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), was received, electing the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2023 AOJ rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. SERVICE CONNECTION The Board finds that the Veteran meets the criteria for service connection for both disabilities on appeal. The issues are granted for the reasons outlined herein. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a low back disability. The Board finds that the Veteran meets the criteria for service connection. First, the Veteran has a diagnosed disability. The May 2023 VA examination report notes a diagnosis of lumbosacral strain, and the April 2023 private opinion notes a diagnosis of chronic lumbar strain. Regarding onset, in the July 2021 VA Form 21-526EZ, the Veteran states: "I have had lower back pain while in the military due to work requirements." VA Form 21-526EZ, July 2021. He describes carrying weapons, gear, and wearing body armor. See VA Form 21-526EZ, July 2021. The April 2023 private opinion states that "[t]he veteran reports that he developed progressive pain in the low back/lumbar spine area while on active duty related to military MOS duties and over-usage." Medical Treatment Record - Non-Government Facility, May 2023. It notes that the Veteran's "daily load consisted of 150 pounds." Medical Treatment Record - Non-Government Facility, May 2023. In addition, the April 2023 private opinion states that "[t]he veteran reports that he continues to have chronic pain and symptoms in the low back/lumbar spine area that initially began on active duty and have been chronic without resolution up until the current date." Medical Treatment Record - Non-Government Facility, May 2023. The Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Regarding nexus, the April 2023 private opinion states: The veteran's historical lay evidence supports an active duty onset of symptoms of the lower back and chronicity of symptomatology from active duty to the current date. There is no evidence of a pre-military low back condition or an intercurrent event, injury, or disease process that occurred after the veteran's active duty separation that would have caused his current disability condition or symptoms. There is a current diagnosis of chronic Lumbar Strain that correlates with documented symptoms in service. The medical literature supports and documents that lower back muscle overuse can cause a chronic lumbar strain with mechanical and functional instability, leading to re-injury, weakened muscles and joint capsules, and significant disability. . . . Thus, based upon my professional education and experience, in conjunction with the medical literature, evidence of record, and history of symptoms, it is my professional opinion that it is at least as likely as not (a 50%/50% probability) that the veteran's current chronic Lumbar Strain condition is due to, related to, a progression of, and/or a continuation of his low back/lumbar spine area Overuse injury that occurred during active duty military service. Medical Treatment Record - Non-Government Facility, May 2023. The Board acknowledges the May 2023 VA negative nexus opinion but affords it no probative weight. Specifically, the Board finds that the opinion does not adequately address the Veteran's competent lay statements, nor does the opinion adequately address the April 2023 private opinion cited above. Given the above, the Board cannot conclusively disassociate the current disability from the Veteran's service. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that criteria for service connection have been met. Accordingly, service connection is warranted, and the issue is granted. 2. Entitlement to service connection for a right shoulder disability. The Board finds that the Veteran meets the criteria for service connection. First, the Veteran has a diagnosed disability. The August 2021, May 2023 VA examination reports, as well as the April 2023 private opinion, note a diagnosis of right shoulder strain. Regarding onset, in the July 2021 VA Form 21-526EZ, the Veteran indicates that his "shoulder strain came from carrying heavy body armor, essential equipment and a shoulder strapped" weapon. VA Form 21-526EZ, July 2021. The April 2023 private opinion states that "[t]he veteran reports that he developed progressive pain in the right shoulder while on active duty related to military MOS duties and over-usage." Medical Treatment Record - Non-Government Facility, May 2023. The April 2023 private opinion states that "[t]he veteran reports that he continues to have pain and symptoms in the right shoulder that initially began on active duty and have been without resolution up until the current date." Medical Treatment Record - Non-Government Facility, May 2023. The Veteran is competent to report on symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Regarding nexus, the April 2023 private opinion states: The veteran's historical lay evidence supports an active duty onset of symptoms of the right shoulder and chronicity of symptomatology from active duty to the current date. There is no evidence of a pre-military right shoulder condition or an intercurrent event, injury, or disease process that occurred after the veteran's active duty separation that would have caused his current disability condition or symptoms. There is a current diagnosis of chronic Right Shoulder Strain that correlates with documented symptoms in service. The medical literature supports and documents that overuse of the shoulder muscles can lead to a chronic shoulder strain with decreased range of motion, proprioception, function, and strength. This can cause a significant disability due to pain and loss of function. . . . Thus, based upon my professional education and experience, in conjunction with the medical literature, evidence of record, and history of symptoms, it is my professional opinion that it is at least as likely as not (a 50%/50% probability) that the veteran's current chronic Right Shoulder Strain is due to, related to, a progression of, and/or a continuation of his Right Shoulder Overuse injury that occurred during active duty military service. Medical Treatment Record - Non-Government Facility, May 2023. In addition, a September 2021 VA opinion provides a positive nexus. It states that the Veteran's "shoulder strain" is "at least as likely as not (50 percent or greater probability) incurred in or caused by the specific in-service illness, event, or injury." VA Opinion, September 2021 (capitalization omitted). The rationale for the opinion states, in part: "The Veteran medical records dated of January 2017 showed Veteran complaint of shoulders pain, and continuity of care dated of August 25th 2017 showed complaint of shoulder pain." VA Opinion, September 2021 (some capitalization omitted). The Board acknowledges the addendum VA opinion obtained in October 2021, which provides a negative nexus statement. The rationale states, in part: "Careful review of medical records show no complaint of shoulder pain during the service period. Report of medical history dated 4/5/2012 shows complaint of shoulder pain which was before service period." VA Addendum Opinion, October 2021. However, the Board has reviewed the April 2012 enlistment Report of Medical History. While this report does indicate "Yes" to "Painful shoulder, elbow or wrist (e.g. pain, dislocation, etc.)", the "Explanation of the 'Yes' answer(s)" indicates that it refers to "Sprained [right] elbow Age 17 - Healed Properly". STR, July 2021 (bold omitted) (italics in original) (some capitalization omitted). Accordingly, the Board affords this opinion no probative weight. Finally, the Board acknowledges the May 2023 VA negative nexus opinion. However, the Board finds the rationale provided to be inadequate. For example, the rationale states: The claimed condition is less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness. Rationale is Veteran's STR 2021, Report of Medical history shows a diagnosis for a right shoulder strain. The VA exam today, demonstrates a right shoulder strain. VA Opinion, May 2023. The rationale goes on to state: After reviewing the claimant's medical history and based on his exam findings, the claimed condition of right shoulder is less likely than not (less than 50 percent probability) incurred during the time in service, because the Veteran's separation of service was in 2017, and the STR for right shoulder occurred several years after Veteran's time in service; and thus, no service connection can be established. VA Opinion, May 2023. The Board finds this rationale to be inadequate for the following reasons. First, it is unclear to the Board to what "STR 2021, Report of Medical history" refers. VA Opinion, May 2023. The Board notes that the opinion goes on to stated that "the Veteran's separation of service was in 2017". VA Opinion, May 2023. Accordingly, a service treatment record (STR) from 2021 would pre-date the Veteran's separation. However, if the statement refers to the April 2012 enlistment Report of Medical History cited above, the Board notes again that the explanation to that report clarified that it referred to a sprained elbow. Given the above, the Board cannot conclusively disassociate the current disability from the Veteran's service. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that criteria for service connection have been met. Accordingly, service connection is warranted, and the issue is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals 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.