Back to BVA DecisionsMIXEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 220913-276695
DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)
ZI-HENG ZHU · 2022 · Case ID: A22021681
Summary
The veteran, who served from April 1955 to February 1958, appeals the denial of service connection for bilateral shoulder disorders and seeks review of denials for low back and bilateral hip disorders. The Board granted service connection for a low back disorder and bilateral hip disorders. The veteran alleged an in-service incident in 1956 where he fell off a 15-foot bridge at Fort Eustis, injuring his back, hips, and knees. The Board found the veteran's testimony credible and consistent with his DD Form 214 and his ex-wife's statement, establishing an in-service incurrence. A February 2022 VA examination provided positive nexus opinions for both the low back and bilateral hip conditions, finding them at least as likely as not related to the in-service injuries. The Board accepted these opinions as probative and found sufficient evidence to establish an etiological link. Service connection for the low back and bilateral hips was granted. The Board denied service connection for bilateral shoulder disorders. The veteran claimed the shoulder issues were related to an in-service incident in 1955 where he was thrown from a jeep. While the veteran had current diagnoses of bilateral shoulder impingement syndrome, the Board found the evidence weighed against an in-service incurrence or relation. VA treatment records from 1999 to 2021 showed no shoulder complaints until April 2021, contradicting the veteran's claim of ongoing symptoms since 1955. A February 2022 VA examination diagnosed bilateral shoulder impingement syndrome and opined it was less likely than not related to service, citing lack of chronicity in care and the chronic, overuse nature of impingement syndrome. The Board found this opinion probative and noted no competent contrary medical opinions. The veteran's lay statements alone were insufficient to establish a nexus without medical evidence.
Rationale
Weight of evidence evenly balanced; In-service incurrence established; Positive nexus opinion from VA examiner; Credible lay evidence
Full Decision Text
Citation Nr: A22021681 Decision Date: 10/27/22 Archive Date: 10/27/22 DOCKET NO. 220913-276695 DATE: October 27, 2022 ORDER Service connection for a low back disorder is granted. Service connection for a left hip disorder is granted. Service connection for a right hip disorder is granted. Service connection for left shoulder disorder is denied. Service connection for right shoulder disorder is denied. FINDINGS OF FACT 1. The weight of the evidence is evenly balanced as to whether the Veteran's low back disorder is etiologically related to his active duty service. 2. The weight of the evidence is evenly balanced as to whether the Veteran's bilateral hip disorders are etiologically related to his active duty service. 3. The weight of the evidence is against a finding that the Veteran's bilateral shoulder disorders were shown in service, or for several years thereafter, or are otherwise related to active duty service, to include any in-service incident. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left hip disorder have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right hip disorder have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1955 to February 1958. The Veteran's claims for service connection for the low back and bilateral hips were denied in an April 2022 rating decision. The Veteran filed a supplemental claim in May 2022 which was denied in a September 2022 rating decision that found that new and relevant evidence was not submitted as to these issues. The Veteran submitted a September 2022 VA Form 10182 (Notice of Disagreement) seeking review of these issues and selecting the direct review lane. This VA Form 10182 specifically sought review for the denials of service connection for the low back and bilateral hip disorders and was received within one year of his April 2022 rating decision. The Board notes that while the subsequent September 2022 rating decision characterized the Veteran's claim as not readjudicated due to new and relevant evidence, the Board interprets the Veteran's VA Form 10182 liberally and finds that the Veteran was seeking review of the initial April 2022 rating decision. Accordingly, as the Veteran's Notice of Disagreement was timely filed as to the April 2022 rating decision, that decision is not final, and a review on the merits is proper. 38 C.F.R. §§ 3.2500, 3.2501. In the September 2022 rating decision, the Veteran's claims for service connection for his bilateral shoulders were also denied. As indicated, the Veteran sought review by filing a timely VA Form 10182 (seeking direct review). Under the direct review lane, the Board must decide the appeal based on the evidence of record at the time of the rating decisions on appeal and no additionally submitted evidence may be considered. The Board notes that, while the Veteran has requested review of the denials for service connection for his neck and bilateral knee disorders from the June 2018 rating decision, his September 2022 Notice of Disagreement was not timely. Notably, the Veteran appears to have timely appealed the June 2018 rating decision and the AOJ issued a January 2022 Statement of the Case (SOC). However, the Veteran did not file a substantive appeal and/or a timely opt in. Likewise, the June 2018 rating decision became final. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 113 . The Board notes that, while the Veteran has requested review of the denials for service connection for his neck and bilateral knee disorders from the June 2018 rating decision, his September 2022 Notice of Disagreement was not timely. Notably, the Veteran appears to have timely appealed the June 2018 rating decision and the AOJ issued a January 2022 Statement of the Case (SOC). However, the Veteran did not file a substantive appeal and/or a timely opt in. Likewise, the June 2018 rating decision became final. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Initially, the Board acknowledges that the Veteran's STRs were fired related and, thus, could not be reconstructed. When STRs are missing, there is a heightened duty on the Board to explain its findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). 1. Entitlement to service connection for a low back disorder and bilateral hip disorders. The Veteran has been given diagnoses for degenerative arthritis of the lumbar spine and osteoarthritis of the bilateral hips. See February 2022 VA Examination reports. Such is sufficient to meet the requirement of a present disability. As to whether the Veteran has an in-service event or injury, the Veteran has competently asserted that he was assigned to C Company in Fort Eustis in 1956 and was working to build railroad tracks when he fell off a 15 foot high bridge. The Veteran's DD Form 214 reflects that he served with C Company 249th Engineer Battalion (Construction) and his ex-wife, who was his wife at the time, stated that in 1956 the Veteran called her from Fort Eustis and told her he was in the hospital after he fell off a bridge. The Board finds the Veteran's statements competent and credible and consistent with his DD Form 214 and his ex-wife's competent statements. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). Therefore, the Board finds that an in-service incurrence has been established. With respect to the final question of whether the Veteran's low back disorder and bilateral hip disorders were related to his in-service incident, the Board finds the evidence of record reasonably establishes that a nexus exists. In pertinent part, in February 2022, the same VA examiner evaluated the Veteran's low back and bilateral hips and rendered positive nexus opinions finding that both the Veteran's bilateral hips and back off a bridge. The Board finds the Veteran's statements competent and credible and consistent with his DD Form 214 and his ex-wife's competent statements. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). Therefore, the Board finds that an in-service incurrence has been established. With respect to the final question of whether the Veteran's low back disorder and bilateral hip disorders were related to his in-service incident, the Board finds the evidence of record reasonably establishes that a nexus exists. In pertinent part, in February 2022, the same VA examiner evaluated the Veteran's low back and bilateral hips and rendered positive nexus opinions finding that both the Veteran's bilateral hips and back disabilities were at least as likely as not related to the Veteran's active service injuries. The examiner noted the Veteran's reports of falling off a bridge during service and sustaining injuries to his back, hips, and knees. The examiner acknowledged the Veteran's ex-wife's statement provided support that the incident occurred. The examiner also acknowledged the Veteran's reports that he had ongoing symptoms due to chronic inflammation and explained that over time the chronic inflammation has progressed to osteoarthritis. The Board accepts this opinion as a favorable etiological opinion regarding the Veteran's current low back disorder and bilateral hip disorders, as the examiner's opinions were based on evaluation of the Veteran, review of the VA claims file, and a sufficient rationale that included a discussion of the competent evidence establishing an in-service injury. Thus, there is sufficient evidence to establish an etiological link between the Veteran's current low back and bilateral hip disorders and his active service. Based on the foregoing, the Board finds that the evidence reasonably establishes that the Veteran's low back disorder and left/right hip disorders are related to his service, and thus service connection is warranted. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for bilateral shoulder disorders. The Veteran seeks service connection for bilateral shoulder disorders. After a thorough review of the record and considering the legal criteria above, the Board finds that, while the Veteran has current diagnoses for bilateral shoulder impingement syndrome, the weight of the evidence is against a finding that these disorders were incurred in service, within one year of his separation from service, or were otherwise related to his service, to include an in-service incurrence, event, or injury. The evidence in support of the Veteran's claim consists of his general contention that his left/right shoulders are related to an incident in active duty service that occurred in 1955. See July 2022 Fully Developed Claim. The Board notes that while there are no STRs of record, the Veteran's available VA treatment records from 1999 to present show no complaints for the left and/or right shoulder until April 2021. The Veteran appears to have sought treatment for various issues related to his musculoskeletal system, to include his neck, back, knees, and ankles from 1999 to 2021, but he did not also seek treatment for any left and/or right shoulder disorder. In fact, the Veteran's extremities were evaluated on numerous occasions without complaints of pain or limitation of motion associated with the shoulders or even his upper extremities. Thus, although the Veteran reported that his shoulders have always hurt since his 1955 in-service incident, the Board finds that such statement is otherwise contradicted by the VA treatment evidence noted above that shows that he did not have shoulder problems until 2021. See August 2022 VA Examination report. Such statement is also less probative than the VA treatment evidence of record which weighs against a finding that the Veteran's left and/or right shoulder disorders manifested in service or soon thereafter. The Board emphasizes that statements made for VA disability compensation purposes are of lesser probative value than the Veteran's previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Consequently, service connection for left and/or right shoulder disorders on the basis that such became manifest in service and persisted is not warranted. To address the question of whether the Veteran's bilateral shoulder disorders were otherwise related to his active duty service, he was provided a VA examination in August 2022. The examiner diagnosed the Veteran with bilateral shoulder impingement syndrome and opined that these conditions were less likely than not incurred in or caused by an in-service injury, event, or illness. evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Consequently, service connection for left and/or right shoulder disorders on the basis that such became manifest in service and persisted is not warranted. To address the question of whether the Veteran's bilateral shoulder disorders were otherwise related to his active duty service, he was provided a VA examination in August 2022. The examiner diagnosed the Veteran with bilateral shoulder impingement syndrome and opined that these conditions were less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner acknowledged the Veteran's reports of shoulder pain since his in-service injury where he was thrown from a jeep. The examiner explained, however, that the Veteran's diagnosis indicates shoulder impingement which is a chronic condition of overuse and typical with symptoms of difficulty reaching up behind the back, pain with overhead use, and weakness. The examiner also explained that there was no chronicity of care noted in the Veteran's chart for left and/or right shoulder pain. The Board finds the examiner's opinion to be probative, as it was based on a thorough review of the Veteran's claims file, examination of the Veteran, and an adequate rationale. Notably, there are no competent medical opinions the contrary. The Board emphasizes that the only evidence in support of this claim are the Veteran's own allegations that his bilateral shoulder disorders are related to his in-service incident in 1955 when he was flung from a jeep. As a lay person, however, the Veteran is not competent to provide a medical opinion as to the relationship between his current shoulder disorders and any in-service incident. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, in the absence of medical evidence, the Veteran's unsubstantiated and conclusory statements are not sufficient to establish a nexus. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's left and/or right shoulder disorders were manifest during active service or within one year of service or are otherwise related to active duty service. Accordingly, these claims are denied. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.