Citation Nr: 1503336 Decision Date: 01/23/15 Archive Date: 01/27/15 DOCKET NO. 12-11 374 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral shoulder disability. 2. Entitlement to service connection for right ankle disability. 3. Entitlement to service connection for mild degenerative changes of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1984 to November 1984 (active duty for training), March 1986 to March 1989, and January 1990 to December 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the St. Louis, Missouri RO in May 2010 (which, in pertinent part, denied service connection for a bilateral shoulder condition and a right ankle condition) and in September 2010 (which, in pertinent part, denied service connection for mild degenerative changes of the cervical spine). FINDINGS OF FACT 1. A bilateral shoulder disability was not manifested in service, arthritis of either shoulder was not manifested within one year after the Veteran's separation from service, and no diagnosed disability of either shoulder is shown to be related to his service. 2. A right ankle disability is not currently shown. 3. A cervical spine disability was not manifested in service, arthritis of the cervical spine was not manifested within one year after the Veteran's separation from service, and no diagnosed cervical spine disability is shown to be related to his service. CONCLUSIONS OF LAW 1. A chronic bilateral shoulder disability was not incurred in or caused by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). 2. Service connection for a right ankle disability is denied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). 3. A chronic cervical spine disability was not incurred in or caused by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was satisfied by correspondence dated in October 2009 and January 2010. The claims on appeal were most recently readjudicated by the AOJ in the November 2012 and January 2013 supplemental statements of the case. It is not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in March 2010 and June 2012, which the Board finds to be adequate for reasons that will be discussed below. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Bilateral shoulder disability The Veteran contends that he has a current chronic disability of both shoulders that was incurred due to injuries in service. The Veteran's STRs include several complaints of right shoulder pain. In December 1993, he reported to sick call for upper back and neck pain that happened after physical training the previous day; there was also pain around the shoulder blade; the assessment was neck strain, and he was given Flexeril and Motrin and placed on temporary physical profile. On follow-up treatment two weeks later, the Veteran reported that the medications had helped but he had some residual pain at the upper right shoulder; the assessment was resolving neck strain. In January 1994, the Veteran complained of left shoulder blade movement with left cervical pain at the base of the neck after a fall while playing football; the assessment was left cervical pain/sprain. In September 1994, he reported that a shoulder injury may have happened while playing football during physical training, when he got hit from the side and fell on his back. The assessment was right shoulder pain. In October 1994, he reported numbness down the right arm. X-rays of the shoulder showed no fractures or dislocations. No further treatment is shown in the STRs for either shoulder. On December 2010 treatment, the Veteran reported shoulder pain. On May 2012 VA treatment, the assessments included left shoulder pain. On June 2012 VA examination, the Veteran reported that prior to 2009 he worked as a bench carpenter; since then he had worked driving a bus. The examiner reviewed the history of shoulder complaints in the STRs, as well as on VA treatment in December 2010 when the impression was mild rotator cuff tendonitis which was felt to be due to the Veteran's posture, and physical therapy was recommended. The examiner noted that X-rays of the left shoulder in 2005, October 2010, and December 2010 were negative, and October 2010 X-rays of the right shoulder were negative. The examiner noted that a January 2011 technetium bone scan of the entire body showed no evidence of abnormality in the shoulders or the ankles. The Veteran reported no injury to either shoulder since 1993/1994; he experienced pain in the left shoulders if lifting 40 to 50 pounds overhead and aching in both shoulders when driving. Following a physical examination, the diagnosis was bilateral shoulder strain. The examiner noted that there were no records of any ongoing medical treatment from 1993 and 1994 to the time the Veteran was seen for shoulder pain by VA in 2010. The examiner opined that there has been no reason to believe that the Veteran's shoulder symptoms are a continuation of the brief episodes of his treatment in the military in 1993 and 1994; therefore, it is not likely that the Veteran's current shoulder symptoms are related to anything that occurred while he was in the military. On July 2012 VA treatment, the Veteran reported that he fell on his left shoulder during PT in service in 1993, and he fell onto his right shoulder in 1994; he reported that he had problems with his shoulders since leaving service. X-rays of the shoulders were normal. Chronic bilateral shoulder disabilities were not noted in service or clinically noted post-service prior to 2010, and service connection for left or right shoulder disabilities on the basis that either such disability became manifest in service and persisted is not warranted. As arthritis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. Furthermore, the preponderance of the evidence is against a finding that the Veteran's current bilateral shoulder disabilities are related to his service. The Board finds the June 2012 VA examination to be entitled to great probative weight, as it took into account a thorough review of the Veteran's claims file and medical history. The examiner's opinion was also based on a physical examination complete with recent X-rays and includes a historically accurate explanation of rationale that cites to factual data. Further, the examiner clearly reviewed all the evidence of record, including the Veteran's contentions. The preponderance of the evidence is against a finding that any current bilateral shoulder disability is related to service. The persuasive medical evidence is to the effect that the chronic disorders diagnosed after service were not actually manifested during service. The evidence is not in a state of equipoise on the question of nexus between any diagnosis of a right or left shoulder disability and the Veteran's service. Simply stated, the Board finds that the service and post-service treatment records, overall, provide evidence against this claim, indicating that the Veteran does not have a current bilateral shoulder disability related to service. More importantly, the competent evidence of record provides evidence against a finding that any current bilateral shoulder disability was incurred in or caused by the Veteran's active service. Regarding the Veteran's own opinion that he has bilateral shoulder disabilities that are due to his service, although lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). As to the specific issue in this case, the probable etiology of a disorder such as arthritis falls outside the realm of common knowledge of a lay person. He has no demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion or medical treatise evidence. Therefore, his opinion in this matter has no probative value. Accordingly, the preponderance of the evidence is against the Veteran's claim of service connection for a bilateral shoulder disability, and the claim must be denied. Right ankle disability The Veteran contends that he incurred a right ankle disability in service. The Veteran's STRs include a complaint of right foot pain in April 1994; he reported that he had twisted his ankle in a hole while running, and the assessment was right ankle sprain. On seven day follow-up treatment, he reported improvement yet still had discomfort when running; he was told to take Motrin and to run, jump, and march at his own pace and distance for seven days. The STRs also include a physical profile for Grade II ankle sprain in late March 1994. No further treatment is shown in the STRs for the right ankle. The post-service VA and private treatment records are negative for any mention of a right ankle condition. In an April 2011 statement, the Veteran stated that he was off his right ankle for over one month in service. He stated that he had continued to have problems with his ankle and was taking over-the-counter medication to help with the pain, though it did little to relieve it. On June 2012 VA examination, the examiner noted that the Veteran twisted his ankle in service in April 1994 when he stepped in a hole while running; it was felt that he had a grade 1 right ankle sprain, and he was put on restrictions for one week. There were no other entries in the claims file pertaining to the right ankle, and the Veteran reported no interval injuries; he reported some mild and rather nonspecific and diffuse right lateral ankle pain if he drives all day. He reported lateral ankle pain upon standing longer than two or three hours. He could walk one mile but tended to avoid walking over uneven surfaces for fear of twisting his ankle. He reported occasional soft tissue puffiness or swelling on the lateral aspect of the right ankle. The Veteran reported no ongoing treatment for the right ankle and no treatment for the ankle since he was in the military in 1994. X-ray results of the right ankle were negative. Following a physical examination, the diagnosis was right lateral ankle sprain in 1994. The examiner noted that the Veteran currently had negligible symptoms and no restriction of physical activities whatsoever with reference to his right ankle. The examiner noted that the Veteran did have a right ankle injury in the military and he had subjective complaints at the present time with reference to the ankle, but there were no abnormal objective physical findings to suggest that there was any active pathology with reference to the right ankle at the time of examination. The threshold requirement in any claim seeking service connection is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., a right ankle disability. The record does not include any such evidence. Notably, the post-service treatment records associated with the record do not show any diagnosis or treatment for right ankle disability. Accordingly, there is no valid claim of service connection for a right ankle disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v Nicholson, 21 Vet. App. 319 (2007). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for right ankle disability. Accordingly, it must be denied. In denying this claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Cervical spine The Veteran's STRs reflect a complaint of upper back and neck pain for 24 hours in December 1993, after physical training the previous day; he was found to have a neck strain and was given Flexeril, Motrin, limited duty and exercises. On follow-up treatment that month, he was feeling better with some mild residual shoulder discomfort that appeared to be resolving. In January 1994, X-rays of the cervical spine showed no fracture or bony deformity; physical examination showed that the Veteran had neck discomfort after performing physical training for 20 days, and the diagnosis was neck strain. On follow-up treatment, posture and support of his head were discussed and his symptoms were decreasing. No further treatment is shown in the STRs for the cervical spine. July 2009 MRI results of the cervical spine showed a broad-based subligamentous herniation of disc material at C5-6, with lateralizing disc/osteophyte complexes as well as encroachment on both intervertebral foramina; a broad-based disc bulge at C3-4 if not subligamentous herniation of disc material, with lateralization to the left of midline with associated osteophyte formation encroaching on the left lateral recess and the left intervertebral foramen; and degenerative disc disease at C6-7 with disc space narrowing, and a broad-based disc bulge and early osteophyte formation. July 2009 X-rays of the cervical spine showed cervical spondylosis with encroachment on the intervertebral foramina at C5-6 and C6-7 levels, some straightening of the normal lordotic curvature in the lower cervical spine, and no compression deformity. On July 2009 treatment, the Veteran was seen for evaluation of his bilateral upper extremities. He complained of pain and paresthesias from his shoulders to his hands, left worse than right. He reported that he experienced intermittent bilateral neck and shoulder pain. In an August 2009 medical statement, Dr. Sudekum noted that X-rays of the Veteran's cervical spine revealed arthritic changes and possible nerve root impingement. Dr. Sudekum opined that the Veteran's job where he had worked for 18 months was not the primary or prevailing causal factor which may have led to the development to cervical disc disease, arthritis of the cervical spine, or cervical nerve root impingement. On September 2009 treatment, the assessment was cervical disc herniation. On March 2010 VA examination, the Veteran reported that he sustained minor injuries while undergoing physical training in 1993 and 1994. He did not recall any specific significant injury or traumatic event but he was playing football and evidently had a neck strain; he was treated conservatively with Motrin and exercises and given limited duty from physical training for a couple of weeks. He had no other significant injury that he recalled since that time. After separation from service, the Veteran worked as a bench carpenter for a retail outlet, in general maintenance for the YMCA, as a shuttle van operator for a hospital, in factory work, sales, and as an over-the-road trucker for at least four years. He reported having a stiff neck once in a while, flaring up every morning or so with stiffness and achy pain; he reported that it usually worked itself out with a hot shower. The examiner noted that a December 2009 EMG nerve conduction study was normal with no evidence of cervical radiculopathy. X-rays showed mild degenerative changes at multiple levels of the cervical spine. Following a physical examination, the diagnosis was mild degenerative disease of the cervical spine; the examiner opined that this is less likely than not a result of neck pain that the Veteran incurred in service, which was muscular in origin. The examiner opined that the Veteran's mild degenerative disease is more likely due to the effects of aging and physical labor incurred over the years since his discharge from service. A chronic cervical spine disability was not noted in service or clinically noted post-service prior to 2009, and service connection for a cervical spine disability on the basis that such disability became manifest in service and persisted is not warranted. As arthritis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. Furthermore, the preponderance of the evidence is against a finding that the Veteran's current cervical spine disability is related to his service. The Board finds the March 2010 VA examination to be entitled to great probative weight, as it took into account a thorough review of the Veteran's claims file and medical history. The examiner's opinion was also based on a physical examination complete with X-rays and includes a historically accurate explanation of rationale that cites to factual data. Further, the examiner clearly reviewed all the evidence of record, including the Veteran's contentions. The preponderance of the evidence is against a finding that any current cervical spine disability is related to service. The persuasive medical evidence is to the effect that the chronic disorder diagnosed after service was not actually manifested during service. The evidence is not in a state of equipoise on the question of nexus between any diagnosis of a cervical spine disability and the Veteran's service. Simply stated, the Board finds that the service and post-service treatment records, overall, provide evidence against this claim, indicating that the Veteran does not have a current cervical spine disability related to service. More importantly, the competent evidence of record provides evidence against a finding that any current cervical spine disability was incurred in or caused by the Veteran's active service. Regarding the Veteran's own opinion that he has a cervical spine disability that is due to his service, although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the probable etiology of a disorder such as arthritis falls outside the realm of common knowledge of a lay person. He has no demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion or medical treatise evidence. Therefore, his opinion in this matter has no probative value. Accordingly, the preponderance of the evidence is against the Veteran's claim of service connection for a cervical spine disability, and the claim must be denied. ORDER Service connection for a bilateral shoulder disability is denied. Service connection for a right ankle disability is denied. Service connection for degenerative changes of the cervical spine is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs