Citation Nr: 1334347 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-31 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical disability. 2. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. In November 2011, the case was remanded to request additional outstanding medical records and to afford the Veteran a VA examination. There has been substantial compliance with the Board's November 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As noted in the November 2011 remand, the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over it, and the matter is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A cervical disability did not manifest in service, cervical arthritis was not compensably disabling within one year following the appellant's separation from active duty, and a cervical disorder is not shown to be related to service. 2. A bilateral shoulder disability did not manifest in service, arthritis of the shoulders was not compensably disabling within one year following the appellant's separation from active duty, and a shoulder disorder is not shown to be related to service. CONCLUSIONS OF LAW 1. A cervical disability was not incurred in or aggravated by service and arthritis of the cervical spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. A bilateral shoulder disability was not incurred in or aggravated by service and shoulder arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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. VA notified the Veteran in July 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently adjudicated in October 2012. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, to include available private and VA treatment records, and as warranted by law, affording VA examinations. There is no evidence that additional obtainable records have yet to be requested, or that additional examinations are in order. The appeal is now ready to be considered on the merits. II. Facts The Veteran's service treatment records show that in May 1965 he was involved in a motor vehicle accident. In this regard, records show that he crashed into a tree striking the windshield. He was not rendered unconscious. Findings revealed a through and through laceration of the lower lip and large jagged horizontal laceration of the right brow line. In addition, there were other minor lacerations on the face and knuckle. He was treated with irrigation, suture closure, dressing, and a tetanus injection. The day following the accident, in June 1965, the Veteran was seen again for complaints of hematuria and left costovertebral and flank pain. Findings revealed marked left costovertebral tenderness. He was hospitalized for eight days and put on complete bed rest followed by conservative treatment. Over the course of two to three days microscopic hematuria clearly completely and over the next week his costovertebral pain and tenderness gradually subsided. He was discharged to light duty and instructed to return to the lab for frequent urinalysis and to the outpatient clinic in one week for a follow up. A follow up outpatient clinic record in June 1965 shows that the Veteran had no recurrence of hematuria and no costovertebral tenderness. He was discharged to duty. In December 1967 the appellant was seen for stabbing right shoulder pain which he described as having previously. No pertinent findings were recorded. The Veteran's March 1968 service discharge examination report shows a normal clinical evaluation of the spine and upper extremities. It also notes that he had a bruised kidney from a May 1965 automobile accident with no complications or sequalea. Results of cervical spine x-rays performed in January 1997 revealed degenerative changes at C4-5 with vertebral margin spurring, a bulging annulux nearly touching the ventral aspect of the cord centrally, and mild degenerative changes at C5-6. Private treatment records in 1998 include a January 1998 record noting that the Veteran had recurrent and chronic neck and shoulder pain secondary to a herniated cervical disc. A July 1998 record from Dr. Pettway notes that he had ongoing problems with the right shoulder and some suspected nerve compression in the right shoulder. August and November 1998 records from M. Wimmer, M.D., show that he had a three to four year history of neck and right shoulder pain. The August 1998 record shows that he was prescribed physical therapy three times a week for two weeks for shoulder arthralgia. The November 1998 record shows that he reported a history of transient quadriplegia, status post a motorcycle accident approximately 30 years earlier. Electromyographic studies were reportedly performed. These records contain impressions of impaired function due to regional myofascial pain syndrome of the right shoulder and parascapular musculature (in August 1998), and mild right median neuropathy at the wrist (carpal tunnel syndrome) and possible right C7 nerve root irritation (in November 1998). Dr. Wimmer stated that it was unclear whether this represented an old chronic right C7 radiculopathy versus a more acute nerve root process. A December 1998 record shows that he was prescribed physical therapy three times a week for two weeks for cervical radiculitis. A May 1999 private treatment record from Dr. Pettway shows that the Veteran had chronic neck and shoulder pain which he treated with almost daily chiropractic treatment. This record goes on to note that the Veteran owned his own chiropractic clinic. An August 1999 record notes that he had a history of myofascial disorder in the neck. Records from Nadar Awwad, D.C., show chiropractic treatment in 2003 and 2004. In December 2004, the Veteran attended a pain management consultation with a private provider. Following the examination the impression was cervical radiculopathy and somatic dysfunction of the cervical, thoracic and lumbar spine. He underwent cervical epidural steroid injection, epidurogram, and manipulation of the cervical and thoracic spine under anesthesia at that time as well as in February 2005. Records from Dr. Awwad on file show chiropractic treatment in 2005. VA Physical Medicine and Rehabilitation clinic records show that November 2006 cervical spine x-rays revealed degenerative disc disease at C4-5 and 5-6. It was noted to be most prominent at C5-6 where there was some posterior osteophyte formation. A December 2006 private office note shows that the Veteran underwent an electromyography/nerve conduction study of both upper extremities which showed some carpal tunnel syndrome on the right and evidence of peripheral neuropathy. According to a February 2007 primary care note, the Veteran had neck spasms and mild degenerative disc disease. VA outpatient treatment records from the Physical Medicine and Rehabilitation clinic show that the Veteran has a history of chronic neck status post whiplash which he reported sustaining in the service in 1965. An August 2007 record reflects an impression of cervical spondylosis and myofascial pain. These records also show that repeat trigger injections helped significantly with chronic neck pain. In addition, VA records show that the Veteran was receiving chiropractic treatment from VA with moderate improvement noted in the past. In June 2008, the Veteran filed a claim of entitlement to service connection for neck and shoulder disorders with a reported onset date of April 1965. VA outpatient treatment records from the Physical Medicine and Rehabilitation in 2008 and 2009 show that the Veteran had tender points in the left upper back and left cervical area and had had trigger point injections over the past two years with good relief. An October 2009 private office note shows that the Veteran awakened at night with pain in his upper left back which radiated to his left lower quadrant. He reported that he thought he may have passed a kidney stone. On file is a November 2009 statement from Dr. Awwad reporting that he had been treating the Veteran off and on for the past several years for a chronic "medical/spinal condition". He said the Veteran consistently complained of pain in his neck, upper back, and right shoulder which stems from an injury in March 1965. In January 2010, the Veteran underwent a VA general examination. He was diagnosed with a chronic cervical muscle sprain which the examiner reported was not service connected, as well as negative magnetic resonance imaging findings of the neck. The Veteran testified at a Travel Board hearing in May 2011 that the motor vehicle accident in service in May 1965 caused a neck injury and that his shoulder had hit the window on impact. He reported suffering a whiplash injury, but was not put in a collar and was not even sure if they had collars back then. He said this occurred at Laredo Air Force Base. He said that he began having neck problems following his transfer to Elmendorf Air Force Base in Anchorage, Alaska, but did not at first equate this problem to the motor vehicle accident. The appellant said that he was not aware that he had a permanent condition when he got out of service as he was just 21 and going to school with a family. He reported that he started seeing a chiropractor on an irregular basis in 1970/71 primarily for his neck and for headaches. He said his shoulder condition was not that bad at the time. The appellant went on to report that due to his condition worsening he found another chiropractor in the 1990s and started getting injections which helped. He said he was presently receiving chiropractic treatment every six weeks. He denied having any other car accidents or trauma to his neck or shoulders. He testified that no doctor had ever told him that his neck problems were due to his military service, but he stated that the doctors did believe that his problems were related to a trauma. In January 2012, the Veteran underwent a VA examination following which the examiner diagnosed cervical spine degenerative disc disease with referred pain to the left trapezius. After relaying the Veteran's medical history and examining him, the examiner opined that there was no evidence of any complaints or treatment of a cervical spine disorder while on active duty. The examiner observed that service treatment records indicate that the Veteran was treated for a kidney bruise and eyebrow and lip lacerations. He said there were no complaints in regard to a neck injury and that the record was silent in this regard. The examiner also noted that the appellant's discharge exam was negative for any neck abnormalities and there was no interim data proximate to discharge. The examiner opined, based on available data, that the cervical spine disorder with pain radiating into the left trapezius and posterior shoulder was less likely than not related to the motor vehicle accident or to military service. In regard to the left shoulder disorder, the January 2012 VA examiner found no service treatment record evidence of the Veteran having a complaint of left shoulder pain and no evidence of any such complaints following the motor vehicle accident. The examiner noted that the separation examination report was negative for any left shoulder abnormalities and the record was silent in regard to the left shoulder. The examiner also noted no interim data proximate to discharge. The examiner found that the Veteran's left shoulder disorder showed a "mixed bag" of symptoms involving strain/myalgia of the trapezius and scapula/rhomboid, acromioclavicular joint degeneration on x-ray as well as referred neck pain. He noted that most of the symptomatology involved referred pain from the neck. He opined that based on available data, the left shoulder disorder was not related to military service or to the noted motor vehicle accident. The Veteran reported in January 2012 that while working for Bell Telephone Laboratories during the 1970 to 1972 timeframe, he woke up with a very sharp pain in his neck and received treatment from a chiropractor who took x-rays. He said he received treatment from this chiropractor for several months. In October 2013, the representative asserted that by taking the Veteran's lay assertions into account, he satisfies all three elements for service connection and his claims should be granted. III. Analysis Law and Regulations 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion The Veteran's service treatment records do not show any complaints or treatment with respect to the neck or left shoulder. They do note a single complaint of right shoulder pain, but no physical disability was found at that time or subsequent thereto to include at the appellant's discharge examination. While the service medical records do indeed show his involvement in a May 1965 motor vehicle accident and hospitalization, there is no complaint, finding or diagnosis pertaining to any neck or shoulder disorder at that time. Rather, the records document a bruised kidney with hematuria, costovertebral angle tenderness and facial lacerations requiring stitches. Moreover, hospital records show that the appellant's complaints regarding hematuria and costovertebral tenderness subsided by the time of his discharge. The appellant's March 1968 service discharge examination report shows a normal clinical evaluation of the spine and upper extremities. The Veteran reports that he initially received chiropractic treatment primarily for neck symptoms in the 1970/1971 timeframe on an irregular basis. In a January 2012 statement he explained that that while at work at that time he woke up with a very sharp pain in his neck. He said he was treated for several months at that time and resumed chiropractic care in the 1990s due to a worsening condition. While records of that treatment could not be obtained, even conceding that the treatment did occur, there is no link between that treatment and a service incurred neck and/or shoulder injury. Furthermore, there is a gap in time between such treatment and the date the Veteran resumed medical care for such symptoms in the 1990s. The absence of chronic cervical and/or shoulder symptoms in service and from the 1970/71 timeframe until the VA examination report in August 2008 interrupts any suggestion of a continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). Though this finding is not determinative of the claim, it warrants consideration. Accordingly, as the weight of evidence does not show chronic cervical and/or bilateral shoulder arthritis since service or continuity of symptomatology after service, service connection under the provisions of 38 C.F.R. § 3.303(b) has not been established. Also, in light of the absence of evidence that the Veteran had cervical and/or shoulder arthritis within one year of service, presumptive service connection under 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 is not warranted. With respect to establishing service connection under 38 C.F.R. § 3.303(d), there is both positive and negative evidence that addresses this point. In short, the Board finds that the evidence weighs against the Veteran's claim. In terms of medical evidence, the positive evidence consist of a two sentence statement from the Veteran's chiropractor, Dr. Awwad, who said in November 2009 that he had been treating the appellant for several years for a chronic "medical/spinal condition" and that he "consistently complained of pain in his neck, upper back, and right shoulder which stems from an injury in March 1965". Notably, Dr. Awwad gave no rationale for his statement. Further, it is not clear that Dr. Awwad in fact reviewed the Veteran's service treatment records, particularly the records relating to the March 1965 motor vehicle accident. Thus his opinion is of minimal probative value. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In contrast, there is a VA opinion negating a nexus between the Veteran's present cervical and shoulder disorders and service. In this regard, a VA examiner in January 2012, after examining the Veteran and reviewing his claims file, pointed out that there is no evidence of any complaints or treatment of a cervical spine or shoulder disorder in service, to include at the time of the May 1965 motor vehicle accident. The January 2012 examiner pointed out that the Veteran's March 1968 discharge examination report showed no neck or shoulder abnormalities, and that there was no interim data proximate to discharge. The examiner thus opined that it was less likely than not that the Veteran's cervical spine disorder with pain radiating into the left trapezius and posterior shoulder was related to the motor vehicle accident or to service. The examiner similarly found no nexus between any shoulder disorder which he described as a "mixed bag" of symptoms involving strain/myalgia of the trapezius and scapular/rhomboid, acromioclavicular joint degeneration on x-ray, as well as referred neck pain, and the motor vehicle accident or to service. As to the Veteran's statements and hearing testimony that his present cervical and shoulder problems are the result of service; namely, the motor vehicle accident in May 1965, the appellant is certainly competent to testify as to his symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Notwithstanding the fact that this matter appears to be the type of medical matter as to which the courts have held lay testimony is not competent, even if the Veteran were competent to opine as to the etiology of his cervical and shoulder disorders, the specific and reasoned opinion of the trained professional in January 2012 negating a nexus outweighs the Veteran's general lay assertion of a nexus. Moreover, the Veteran's statements and hearing testimony are inconsistent with Dr. Wimmer's records in 1998 which note that he had a three to four year history of neck and right shoulder pain. Based on the foregoing, the Board finds that the weight of evidence is against the Veteran's claims of entitlement to service connection for cervical and bilateral shoulder disabilities. 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 claims, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a cervical disability is denied. Entitlement to service connection for a bilateral shoulder disability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs