Citation Nr: 18160387
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-53 477
DATE:	December 27, 2018
ORDER
New and material evidence having been received, the petition to reopen the claim for service connection for mechanical low back pain and herniated disc L4-L5 (also claimed as back injury) is granted.
Service connection for right shoulder acromioclavicular (AC) joint arthritis (also claimed as right shoulder injury) is denied.
Service connection for left ankle injury is denied.
Service connection for right ankle injury is denied.
REMANDED
Entitlement to service connection for mechanical low back pain and herniated disc L4-L5 (also claimed as back injury) is remanded.
Entitlement to service connection for cervical spine degenerative disc disease (also claimed as neck injury) is remanded.
FINDINGS OF FACT
1. The evidence received since the final Board October 1996 rating decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a low back disability.
2. The preponderance of the evidence is against finding that the Veteran has right shoulder AC joint arthritis disability due to a disease or injury in service, to include specific in-service event, injury, or disease.
3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis or functional impairment of his left ankle.
4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis or functional impairment of his right ankle.
CONCLUSIONS OF LAW
1. The criteria for reopening the claim of service connection for mechanical low back pain and herniated disc L4-L5 (also claimed as back injury) have been met.  See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103.
2. The criteria for service connection for right shoulder AC joint arthritis (also claimed as right shoulder injury) have not been met.  38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
3. The criteria for service connection for a left ankle disability have not been met.  38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.
4. The criteria for service connection for a right ankle disability have not been met.  38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1984 to July 1988.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 
Whether new and material evidence has been received to reopen a service connection claim for mechanical low back pain and herniated disc L4-L5 (also claimed as back injury).
Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C. § 5108.
New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  
The credibility of the evidence is presumed in determining whether new and material evidence has been submitted.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 
24 Vet. App. 110, 117 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.
In the instant case, an October 1996 Board rating decision denied service connection for low back disorder.  The decision denied the claim based on a lack of competent medical opinions describing a current disability and relating any disability to service.  The Veteran did not appeal the decision and thus the decision became final.  38 C.F.R. § 20.1103.
The Veteran filed a claim to reopen the low back disorder in October 2014, after the 1996 Board decision had become final.  After review of the pertinent probative evidence of record the Board finds that new and material evidence has been submitted to reopen the claim.  The Veteran submitted a statement in October 2014 asserting that he injured his back and neck after a drill sergeant made him do push-ups with a fully loaded duffle bag; while the drill sergeant placed his boot on his neck and back.  In addition, a fellow service member provided an amended statement of support for the claim dated October 2016.  The statement asserted that he witnessed the Veteran fall while carrying a large caliber weapon during training.  Thereafter, the platoon sergeant did not allow the Veteran to seek medical attention.  Moreover, after the fall there were continuous complaints regarding shoulder and neck pain.  The lay statements allude to incidents that occurred in service that could be related to the Veteran’s current lower back disability.
Based on the evidence above, the Board finds that new and material evidence has been received to reopen the claim of service connection for a low back disability.  The lay statements submitted regarding in-service incidents are material to substantiating his service connection claim.
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing:  (1) the existence of a present disability; (2) 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.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology.  However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013).
Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b).  
In order to establish entitlement to secondary service connection, there must be 
(1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).
1. Entitlement to service connection for right shoulder AC joint arthritis (also claimed as right shoulder injury)
The Veteran contends that his right shoulder AC joint arthritis is related to his active military service.  He contends the injury happened at Schofield Barracks in Hawaii in March 1985.
An August 2016 VA examination, diagnosed the Veteran with right shoulder 
AC joint arthritis.  
The Veteran’s July 1984 entrance examination and Accompanying Report of Medical History were both silent for upper extremity abnormalities.  During service there was no complaint, treatment or a diagnosis related to his shoulder.  
At discharge, in April 1988, he declined a separation examination after requesting an early release to attend college.  His medical records were reviewed by a medical examiner who determined there had been no significant change in his health.  
Following service, VA treatment records in November 2012, showed he was seen for right shoulder pain in November 2012.  It was noted that the right shoulder had been bother him for many years.  It was also noted that he worked construction and does a “fair amount” of lifting.  He reported difficulty lifting weight between 80 to 120 degrees of flexion and abduction.  Moreover, he had difficulty sleeping due to pain.  An X-ray showed narrowing of the acromioclavicular joint.  There was also an indication of bursitis and rotator cuff inflammation on his magnetic resonance imaging (MRI).  The assessment was right shoulder rotator cuff tendinosis and right bicipital tendinitis.
In December 2013, private treatment records reveal he underwent surgery to repair the right rotator cuff.  
In August 2016, the Veteran was afforded a VA examination to determine the etiology of his right shoulder disability.  He detailed the alleged active duty accident where he fell during a training exercise while carrying a heavy 90 caliber weapon.  Moreover, he did not seek medical attention at the time of the incident.  After the fall he experienced occasional grinding noise with certain movements of the right shoulder prior to the rotator cuff surgery in 2013.  Following surgery, he reported that he had regained his strength and most of his mobility while no longer experiencing chronic shoulder pain.  The examiner diagnosed right shoulder rotator cuff and biceps tendinosis status post arthroscopic rotator cuff repair.  
The 2016 VA examiner provided an opinion that the right shoulder injury was less likely than not incurred in or caused by the fall and injury sustained in service as described in the statement of support from his fellow service member.  
The reasoning was because his enlistment examination was silent for upper extremity abnormalities.  During service there was no treatment for his shoulder.  At discharge, although he declined a separation examination his medical records were reviewed and there was no indication of a change in his health. Moreover, a prior compensation and pension examination in 1994 related to a low back claim did not record any right shoulder condition or complaints regarding the shoulder.  Furthermore, the first treatment for the shoulder occurred in 2012 following employment as a construction worker and mechanic.  The examiner noted that both occupations could have caused stress injury due to the long-term repetitive right upper extremity motion; particularly due to the fact that the Veteran was right handed.  The Board finds this opinion to be competent and credible evidence that weighs against a nexus to service.  In this regard, the Board places weigh on this opinion as the examination recorded the pertinent medical history, reviewed the Veteran’s service treatment records, conducted a physical examination, and provided support for the negative opinion. 
The Board notes arthritis is one of the enumerated diseases identified under 38 C.F.R. § 3.309(a), thus service connection may be established on a presumptive theory of entitlement for chronic diseases.  However, the probative evidence of record here does not show that symptoms related to arthritis manifested to a compensable degree during the year following service.  In addition, the record does not support a continuity of symptomatology as the August 2016 VA examiner concluded there was no medical evidence found to support a continuity of symptomatology theory of entitlement.  The Veteran had not asserted symptoms on a continual basis following active service.
The Board acknowledges the Veteran’s assertions that his right shoulder disability is related to his active military service.  Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the shoulder disability is a medical question not subject to lay expertise.  See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The condition here involves a pathological process that is not readily observable to a layperson.  The Board finds that in light of the non-observable nature of the pathology, the issue of origin of the diagnosed condition is a medical question requiring medical training, expertise, and experience.  In this regard, the August 2016 VA examiner has provided a thorough examination report that took into consideration the Veteran’s lay statements and provided a sufficient rationale for the Board to evaluate the claim.  Thus, the Board gives great weight to VA examiner’s opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).
In sum, the Veteran has a current disability and an in-service incident regarding his right shoulder, however there is not a nexus between the current disability and military service.  The preponderance of the evidence weighs against a finding for service connection for the right shoulder disability. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim.  38 C.FR. § 3.102.
2. Entitlement to service connection for bilateral ankle injuries.
The Veteran contends that he has bilateral ankle injuries that were incurred during his active military service.  He also contends the injury to the ankles happened at Scholfield Barracks in Hawaii in 1985.
The evidence of record does not support a finding of a current disability related to his ankles.  In the absence of proof of a present disability there can be no claim.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).
The Veteran’s July 1984 entrance examination and Accompanying Report of Medical History are both silent for ankle abnormalities.  During service there was no complaint, treatment or diagnosis related to his ankles.  As noted above, there was no separation examination, however a review of his medical records indicated no health changes occurred.  The Board finds the foregoing evidence weighs against an in-service event or injury.
Following service, in May 1994, when the Veteran enrolled in a substance abuse program he stated he had sprained his ankles previously, but had no problems upon admission.
The evidence of record reveals he had an X-ray on his right ankle at a VA facility in Hot Springs in December 2015.  The radiograph showed no significant abnormality to correlate with the provided history of right ankle pain.  
Based on the evidence above the Board finds there is no diagnosis associated with either of his ankles.  Additionally, the evidence weighs against finding any functional impact caused by either ankle.  The Board recognizes the Veteran’s lay statements asserting bilateral ankle injuries while performing construction on active duty.  The Board finds him competent, however there is no current diagnosis or functional impact a disability for which service connection may be granted.   
In sum, the Board finds there is no current disability.  As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the bilateral ankle service connection claim must be denied.  38 C.FR. § 3.102.
REASONS FOR REMAND
1.  Entitlement to service connection for mechanical low back pain and herniated disc L4-L5 (also claimed as back injury) is remanded.
As noted above, the claim has been reopened based on new and material evidence regarding the Veteran’s October 2014 lay statement and the updated statement of one of his fellow servicemembers in October 2016; who witnessed him fall during his active service.  The Board notes the original claim was denied, in part, based on a May 1994 VA examination.  The 1994 VA examiner was not privy to the alleged fall during service; as such, probative medical information was not available to fully evaluate the claim.  In light of this, the Board another VA examination and etiological opinion in needed to fully and fairly adjudicate this issue. 
2.  Entitlement to service connection for cervical spine degenerative disc disease (also claimed as neck injury) is remanded.
The evidence of record shows that the Veteran has not been afforded a 
VA examination for his cervical spine degenerative disc disease.  The record contains a private MRI dated July 2013 that shows moderate severe central canal stenosis at C3 and C4-5 with moderate to severe biforaminal narrowing at C5-6 and C6-7.  Lay statements by the Veteran and a fellow service member allege he fell during service.  As such, remand is warranted to afforded the Veteran a 
VA examination to determine if his current neck disability is related to an event/injury during his active military service.
The matters are REMANDED for the following actions:
1. Update/Obtain VA treatment records from July 2016 to the present.  Document all requests for information as well as responses in the claims file.
2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his mechanical low back disability.  The examiner must opine is it at least likely as not related to an in-service injury, event, or disease.  
A comprehensive rationale is to be provided.  The examiner is to specifically discuss:
(a.) The Veteran’s lay statement in October 2014 and two statements provided by a fellow service member in March 2014 (see 10/03/2014 VA 21-4138) and October 2016 (see 10/31/2016 Buddy/Lay Statement).
3. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his cervical spine degenerative disc disease disability.  The examiner is to provide an opinion whether it at least likely as not related to an in-service injury, event, or disease.  A comprehensive rationale is to be provided.  The examiner should specifically discuss:
(a.) The Veteran’s lay statement in October 2014 (see 10/31/2014 VA 21-4138) and two statements provided by a fellow service member in March 2014 and October 2016.

 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. M. Williams, Associate Counsel

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