Citation Nr: 1237643 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 06-22 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for left hip osteopenia, claimed as secondary to lumbar intervertebral disc syndrome. 2. Entitlement to service connection for loss of bilateral shoulder muscle mass, claimed as secondary to cervical intervertebral disc syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to January 1974. He had additional service in the New York Army National Guard. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In December 2010, the Board, inter alia, remanded the claims noted on the title page for additional development. FINDINGS OF FACT 1. Left hip osteopenia was not demonstrated in-service or until many years later, and it is not caused or worsened by service-connected cervical and lumbar spine disabilities. 2. A loss of bilateral shoulder muscle mass was not demonstrated in-service or until many years later, and it is not caused or worsened by service-connected cervical and lumbar spine disabilities. CONCLUSIONS OF LAW 1. Osteopenia of the left hip was not incurred in or aggravated by service, and it is not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). 2. Loss of bilateral shoulder muscle mass was not incurred or aggravated by service , and it is not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In October 2004 and May 2005, VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In March 2006, VA provided notice of how disability ratings and effective dates are determined. The issues were readjudicated in February 2012. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claims. The claims file contains service treatment records, private and VA medical records, and records received from the Social Security Administration. The Veteran was provided VA examinations in February 2005 and March 2011. The Board acknowledges the Veteran's July 2006 assertion that the opinion of the February 2005 VA examiner is inadequate due to the absence of supporting rationale provided for that opinion. The Board finds, however, that the opinion of the February 2005 VA examiner, in conjunction with the opinion of the March 2011 examiner, is adequate for purposes of adjudication of the claims on appeal. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion pertaining to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In sum, the Board finds no error or issue that precludes it from addressing the merits of this appeal. 38 C.F.R. § 3.159. Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a present disability, the Veteran 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). Without a currently diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (an individual is competent to report on that which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In a January 2000 statement, the Veteran asserted that osteopenia of his left hip is related to in-service vehicle and motor cycle accidents in 1970 and 1973. In April 2004, the appellant argued that osteopenia of his left hip and bilateral shoulder muscle loss are causally related to his service-connected spine disabilities. The evidence of record shows that the appellant is service connected, in pertinent part, for disc herniation of his lumbar spine and disc herniation of his cervical spine with degenerative disc disease. The Veteran's service treatment records are negative for the claimed disabilities. They do, however, confirm that he was involved in a vehicle accident in June 1970, which resulted in complaints of right shoulder and slight anterior neck pain when turning or bending to the left. X-ray examinations of the cervical spine and shoulder at that time were negative. The diagnostic impression was no injury of significance. The service medical records also confirm his involvement in a motorcycle accident in March 1973, which resulted in an abrasion and laceration of his left arm and hand. At a January 1974 separation examination clinical evaluation of the appellant's musculoskeletal system, spine, and upper and lower extremities revealed normal findings. There were no neurologic abnormalities. The Veteran denied any history of leg cramps, arthritis, bone or joint deformity, lameness, painful/trick shoulder, and recurrent back pain. I. Osteopenia of the Left Hip The Veteran's numerous statements of record note his complaints of low back and left hip pain since military service. Contemporaneous post-service private and VA treatment records, however, show that he has consistently dated the earliest onset of any pain in or around his left hip to in or around 1990, following a November 1989 work-related lifting injury of his low back. An October 1991 private treatment note shows that the Veteran recalled that at the time of the November 1989 work-related back injury, his pain was mainly confined to the low back. He reported that he initially noticed pain in the left sacroiliac area while participating in a work rehabilitation program from July to November 1990. Intermittent complaints of low back and left leg pain were noted through May 1996 when the Veteran complained of a sharp throbbing pain to the left of the lumbosacral spine. A September 1996, CT scan of the lumbosacral spine revealed mild osteoporotic changes and mild degenerative changes at the L5-S1 facet joints. In October 1996, the Veteran complained of a sharp pain to the right of his tailbone, in the area of his coccyx, since 1989. X-rays of the sacrum/coccyx at that time showed no abnormalities. Pelvic X-rays showed a small density in the proximal left femur, almost certainly a small bone island in the absence of any history of malignancy. A dual-energy x-ray absorptiometry study was performed in February 1997, and it led to a diagnosis of significant osteopenia of the L3 and L4 vertebrae, and in the femoral neck and Ward's triangle region of the left hip. He was referred to the VA endocrinology clinic for follow-up and treatment of osteopenia. VA endocrinology and clinical treatment records show that in September 1997, the Veteran reported a history of left hip, neck, and back pain since 8 years prior with diagnosis of significant osteopenia of the lumbar spine and left hip. At the time of diagnosis, there was no history of chronic steroid use. Vitamin D, parathyroid hormone, serum protein electrophoresis, and prostate-specific antigen levels were normal. The etiology of such diagnosis was described as unknown. Treatment was initiated at that time, to include prescribed Fossamax, and calcium and vitamin D supplements with annual monitoring. Follow-up dual-energy x-ray absorptiometry studies were performed in January 1999, August 2001, and December 2002. Results in January 1999 showed that the left hip remained borderline osteoporotic. In August 2002, results were described as consistent with osteopenia. In December 2002, however, the left hip T score was considered normal. During a May 2000 VA orthopedic examination, it was noted that a recent bone density study showed significant demineralization of vertebral segments with obscure etiology. The examiner indicated that such findings may contribute to complaints of chronic neck and back pain noted during examination. A February 2002 state disability examination report shows a diagnosis of left hip pain, probably secondary to low back pain. During VA examination in February 2004, performed by the same examiner who conducted the May 2000 VA examination, it was noted that a densimetry study revealed rather marked osteopenia of the left hip. The examiner noted the Veteran's reportedly severe functional limitations, however, the examiner opined that the absence of physiologic findings on x-ray and physical findings on examination to account for such were demonstrative of rather marked symptom magnification by the appellant. An etiological opinion pertaining to osteopenia of the left hip was not provided. In a May 2004 statement, a private physician, Dr. S, noted the appellant's in-service history of motor vehicle/cycle accidents. He noted the diagnosis of osteopenia of the left hip, among others, and stated that he felt that the Veteran is "disabled 100 percent evidence of service connected for all components." During VA examination in February 2005, performed by the same examiner who conducted the prior May 2000 and February 2004 examinations, the Veteran ambulated with a cane without a significant limp. Range of motion of the thoracolumbar spine was virtually nil in all planes due to complaints of pain and there was diffuse tenderness on palpation of the lower paravertebral musculature. The examiner opined that the Veteran's claimed lower extremity weakness was due to either symptom magnification or hysteria because observance of his gait revealed no evidence of motor loss of the lower extremities, or weakness of plantar or dorsiflexion during ambulation. The examiner opined that osteopenia of the left hip was most likely due to inactivity and certainly not secondary to any structural disorder of the cervical or lumbar spine. The examiner stated that the subjective symptoms of which the Veteran complained were grossly out of proportion to the "minimal" objective physical findings on examination. In accordance with the Board's December 2010 remand, the Veteran underwent an additional VA spine examination, performed by a different examiner, in March 2011. Following review of the claims file, to include statements from Dr. §, and examination of the Veteran, the examiner diagnosed left hip osteopenia that was radiologically resolved at the time of examination. The examiner opined that left hip osteopenia was less likely as not caused by, a result of, or permanently aggravated by service-connected cervical and/or lumbar spine conditions because a recent bone scan had shown that mineralization of the left hip had increased or improved to the point of no longer being considered osteopenic. He stated that symptom magnification observed and noted during examination, and relatively uninhibited spontaneous motion observed during examination and on the Veteran's departure from that examination, argued against a notion that his service-connected spinal conditions were so severe as to provide a causal link between those disabilities and the claimed hip condition. In light of McClain v. Nicholson, 21 Vet. App. 319 (2009), the Board must concede that the appellant has osteopenia of the left hip. There is, however, no competent evidence of left hip osteopenia during military service. While the Veteran's statements of record suggest that he has experienced left hip pain during and continuously since active service, there is no documentation that he was diagnosed with osteopenia of the left hip until 1997, more than 20 years post service. Despite frequent diagnostic physical examinations for worker's compensation purposes due to multiple work-related back injuries many years post-service, there were no complaints of left hip pain until 1989 at the earliest, after he endured a work-related lifting injury of his low back. The earliest finding of osteopenia was not until 1997. Thus, to the extent that the Veteran suggests that osteopenia of the left hip had its onset during active service, his statements to that effect are not credible given documentation showing pain onset in the left hip, as well as the absence of complaint of findings of a left hip disability many years following discharge. Maxson v. West, 12 Vet. App. 453 (1999) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Additionally, the preponderance of the competent medical evidence is against a finding that osteopenia of the left hip is otherwise related to military service, to include verified vehicle and motorcycle accidents therein, or that it is proximately caused or aggravated by service-connected cervical and lumbar spine disabilities. While the May 2004 statement from Dr. S appears to suggest or opine that left hip osteopenia is related to vehicle and motorcycle accidents during service or is caused or aggravated by service-connected lumbar and cervical spine disabilities, no supporting rational was provided. The lack of detail and reasoning prevents any effective comparison between the statements and opinions provided by Dr. S and those provided by the February 2005 and March 2011 VA examiners. Thus, Board assigns little weight to this opinion. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. A medical opinion that contains only data and conclusions is not entitled to any weight. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Further, "It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008). In contrast, the February 2005 VA examiner, who examined the appellant on three occasions, and the March 2011 VA examiner, both conducted complete physical examinations and comprehensive reviews of the claims folder, including service treatment records, service medical reports, the private medical opinion of Dr. S, and the appellant's written statements. Both VA examiners concluded that left hip osteopenia is not related to any incident of his military service, nor was it aggravated by service-connected spine disabilities. The February 2005 VA examiner concluded that osteopenia of the left hip was most likely due to inactivity and certainly not secondary to any structural disorder of the cervical or lumbar spine given the minimal objective findings on examination. The March 2011 examiner clarified that in light of the appellant's relatively unrestricted spontaneous movement and ambulation during and after examination, that it is unlikely that the service-connected spine disabilities result in the inactivity to which the February 2005 VA examiner attributed osteopenia of the left hip to. The VA opinions are factually accurate, fully articulated, and contain sound reasoning. Thus, the February 2005 and March 2011 opinions are afforded significant probative value and are entitled to more weight than the statements and May 2004 opinion of Dr. S. In light of the foregoing, the preponderance of the evidence is against a finding that osteopenia of the left hip had its onset during service or is caused or aggravated by service or service-connected cervical and/or lumbar spine disability. The claim is denied. B. Bilateral shoulder muscle loss Review of the record shows that the Veteran has complained of neck pain with radicular and non-radicular pain to one or both shoulders since the early 1990s. The Veteran's VA treatment records between September 1993 and March 2001 note complaints of neck pain and periodic radicular pain to right shoulder. In August 1999, the Veteran received cervical epidural steroid nerve blocks. Thereafter, he complained of right shoulder pain and muscle spasm in his neck, worse at night. During physical examination in February 2000, motor strength of the bilateral upper extremities was strong at 5/5. In July 2000, range of motion of the right shoulder was full with pain on adduction. In March 2001, the Veteran felt that his arm pain was aggravated by recent snow shoveling. In February 2002, a state disability examination showed that the right upper extremity had decreased muscle strength (4/5) and sensation. Right upper extremity muscle atrophy was initially noted in a July 2002 private treatment note pertaining to complaints of cervical pain with pain and numbness to the right upper extremity. At a February 2004 VA spine examination the Veteran complained of neck and bilateral shoulder pain. Following an examination the examiner stated that although the Veteran has pathological cervical and lumbar spine disorders related to in-service injuries, his subjective symptoms and reported dysfunction on examination were grossly out of proportion with objective physical findings on examination. Excessive pain behavior with nonphysiologic findings on examination was indicative of rather marked magnification of symptoms. In a May 2004 statement, Dr. S again noted the Veteran's military history of automobile and motorcycle accidents in the 1970s. He stated that the Veteran suffered from degenerative changes in his neck and that he has been disabled with injury of his neck, back, and left shoulder with muscle loss bilaterally. He felt that the Veteran "is disabled 100 percent evidence of service connected for all components." The February 2004 VA examiner conducted an additional VA spine examination in February 2005. Following that examination and a review of the record, to include statements received from Dr. S, the examiner opined that the Veteran did not have any muscle loss of the shoulders secondary to any cervical spine disorder. Rather, he opined that the appellant's shoulder muscle loss was disuse atrophy. He further opined that the subjective symptoms of which the Veteran complained were grossly out of proportion to the minimal objective physical findings. In accordance with the December 2010 remand, the Veteran underwent an additional VA examination for the claimed disability in March 2011. The examiner reviewed the claims file, to include service treatment records, private treatment records, and comments from Dr. S and other physicians. The Veteran reported continued shoulder and neck pain since in-service vehicle and motorcycle accidents in the 1970s, which he indicated had progressed ever since. Following a detailed and thorough physical examination, the examiner diagnosed cervical degenerative disc disease with referred non-radicular pain to the shoulders and shoulder disuse atrophy. The examiner opined that shoulder disuse atrophy is less likely as not caused by, a result or, or permanently aggravated by service-connected cervical and/or lumbar spine conditions. He reasoned that the Veteran's long history of shoulder pain was unresponsive to interventions in the cervical spine, including TENS, physical therapy, nerve blocks, and epidural steroids, however, shoulder pain is responsive to local injections and local applications of topical analgesics, which is indicative of a pain condition that is local and not radicular. The examiner further explained that sensory innervations to the neck and shoulders is at the C-2, C-3, and C-4 levels, whereas degenerative disc disease of Veteran's spine was only shown at the C-6 level, which provides sensory innervations for the arm. Thus, the examiner concluded that there was no anatomic or physiologic evidence of a shoulder disorder secondary to the service-connected neck disorder. The examiner further stated that symptom magnification observed and noted during examination, and relatively uninhibited spontaneous motion, argued against a notion that the Veteran's spinal conditions were so severe as to provide a causal link between spinal problems and the claimed bilateral shoulder disorder. On review, there is no competent evidence of bilateral shoulder muscle loss during military service. While the Veteran's statements of record suggest that he has experienced neck and shoulder pain during service and continuously since accidents therein, there is no documentation that he was diagnosed disuse atrophy or bilateral shoulder muscle loss at any time prior to 2002, more than 25 years post service. This fact weighs against the appellant's claim. Maxson. Despite frequent diagnostic physical examinations for worker's compensation purposes due to multiple work-related orthopedic injuries post-service, there were no complaints of shoulder pain until 1993 at the earliest and the earliest finding of muscle loss was nearly 10 years later. Thus, to the extent that the Veteran suggests that disuse atrophy or loss of bilateral shoulder muscle mass may have had its onset during active service, his statements are not credible given documentation showing pain onset in one or both shoulders in 1993 at the earliest, as well as the absence of complaint of findings pertaining to either shoulder for many years following discharge. Additionally, the preponderance of the competent medical evidence is against a finding that bilateral shoulder muscle loss is otherwise related to military service, to include verified vehicle and motorcycle accidents therein. The preponderance of the most probative evidence is against finding that bilateral shoulder muscle loss is proximately caused or aggravated by service-connected cervical and lumbar spine disabilities. While the May 2004 statement from Dr. S appears to suggest or opine that the claimed bilateral shoulder muscle loss is related to vehicle and motorcycle accidents during service or is caused or aggravated by service-connected lumbar and cervical spine disabilities, no supporting rational was provided. Again, the lack of detail and reasoning prevents any effective comparison between the statements and opinions provided by Dr. S and those provided by the February 2005 and March 2011 VA examiners. Thus, Board gives little weight to this opinion. For the same reasons previously cited and discussed, the Board concludes that the opinions of the February 2005 and March 2011 VA examiners are more probative than the statements and opinion of Dr. S. Accordingly, preponderance of the evidence is against a finding that bilateral shoulder muscle loss had its onset during service or is otherwise related to service or service-connected disability. The Board acknowledges the appellant's personal belief and statements to the effect that the claimed disabilities were incurred in or are otherwise related to military service or that they are proximately due to or aggravated by service-connected disability. The appellant, however, is not shown and has not claimed to have medical training, and as such, he is not competent to offer an opinion on the etiology of the claimed disabilities. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reaching the conclusions above, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for left hip osteopenia, secondary to lumbar intervertebral disc syndrome is denied. Entitlement to service connection for loss of bilateral shoulder muscle mass, secondary to a cervical intervertebral disc syndrome is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs