Citation Nr: 18141425 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-24 662A DATE: October 10, 2018 ORDER Service connection for a left shoulder disorder to include muscle spasms is denied. Service connection for a left leg disorder to include muscle spasms, including as secondary to the service-connected back disability, is denied. Service connection for a cervical spine disorder to include muscle spasms is denied. FINDINGS OF FACT 1. The Veteran has a currently post-service diagnosed muscle spasm disorder and early osteoarthritis of the left shoulder that is not causally or etiologically related to service. 2. There is no current diagnosis of a left leg muscle spasm or other left leg disorder. 3. There is no current diagnosis of a cervical spine or other cervical muscle spasm disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder to include muscle spasms have not been met. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a left leg disorder to include muscle spasms, including as secondary to the service-connected back disability, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 3. The criteria for service connection for a cervical disorder to include muscle spasms have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, had active service from August 1980 to August 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) that denied service connection for disorders of the left shoulder, left leg, cervical spine, low back, and right leg, to include muscle spasms. During the pendency of this appeal, the RO granted service connection in a May 2016 rating decision for the low back muscle spasm and the right leg muscle spasm. The Veteran did not appeal the May 2016 rating decision; therefore, the Board finds that the claims for service connection for low back and right leg muscle spasm disorders are not before the Board. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Veteran filed a Fully Developed Claim (FDC) pursuant to the Secretary of VA's program to expedite claims. Under this framework, a claim is submitted in a "fully developed" status, limiting, if not eliminating, the need for further development by VA. As part of the FDC process, a veteran is to submit all evidence relevant and pertinent to the claim. However, under certain circumstances, additional development may still be required prior to adjudication of the claim. VA provided a shoulder and arm VA examination in August 2017. The examination report reflects that the record was reviewed and appropriate testing was administered as to the level of impairment. The August 2017 examination report reflects that, after a review of the record, while no diagnosis of the left shoulder was made, range of motion testing did show abnormal results. Service Connection Legal Authority Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and injury or disease during service. Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 38 C.F.R. § 3.310(c). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In this case, the Veteran is currently diagnosed with osteoarthritis of the left shoulder which is listed as a "chronic disease" (of arthritis) under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply as to that issue. Walker, 708 F.3d at 1131. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and has a disease (arthritis) that has manifested to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Left Shoulder Disorder The Veteran contends in a March 2014 written statement that due to pain in his left shoulder he had to stop working as a tennis instructor and has been receiving chiropractic and physical therapy. The Veteran provided clarification regarding the left shoulder pain in a June 2014 statement, where he reported having pain in the left shoulder that radiates from the top of his shoulder to his neck. Initially the Board finds that the Veteran has a currently diagnosed left shoulder muscle spasm and osteoarthritis disorder. See May 2016 Treatment Record; March 2017 Medical Treatment Record. After review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the current osteoarthritis left shoulder disorder was incurred in or the result of service. While a July 1982 service treatment record noted a pulled muscle in the shoulder while playing tennis, the injury is reported to affect the right shoulder only. No other service treatment records contain complaints, symptoms, treatments, or diagnoses of a left shoulder injury or any other left shoulder disorder. The Board finds both that the service treatment records are complete, and that, had a left shoulder injury occurred in 1982 or between 1980 and 1983 (active service dates), such left shoulder injury, symptoms, and treatment are the type of injury, symptoms, and treatment that would have been recorded in the service treatment records. Service treatment records show complaints or treatment for other disorders, most notably a right shoulder injury, but do not show a left shoulder injury, complaints, diagnosis, or treatment. As a result, the absence of any relevant in-service complaint, finding, or reference to treatment or even symptoms of left shoulder pain weighs against a finding that the Veteran had osteoarthritis left should disorder, or other disorder relating to the left shoulder in service. See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). Private treatment records reflect that the Veteran first reported left shoulder pain in January 2012. Specifically, the treatment report stated that the Veteran developed left pectoral shoulder/scapular pain on January 3, 2012 while doing “his exercises” and developed left pectoral/shoulder pain that was worse with the use of left arm, but the pain had decreased within days. The treatment note concluded that the left shoulder was normal. Private treatment records from October 2013 list left shoulder pain as a current complaint. Private treatment records from Dr. A.R. from June 2014 report that the Veteran has been a patient there receiving left shoulder treatment since February 2014 and has a current diagnosis of left should trapezius and rhomboid muscle spasms. Dr. A.R. reported that the Veteran had improved during treatment, but occasionally experiencing exacerbation of the spams with pain and continues to receive treatment. Private treatment records from May 2016 report that the Veteran’s left shoulder shows early signs of osteoarthritis. In May 2015 the Veteran provided a written statement concerning several injuries, specifically recording a right shoulder injury in August 1982, but did not report any problem with the left shoulder. See May 2015 Correspondence. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that there was a left shoulder injury or disease during service or that there were chronic symptoms of osteoarthritis of the left shoulder during service. Although the Veteran has maintained that he injured the left shoulder during service, the account is inconsistent with, and outweighed by, available service treatment records and post-service treatment records, and other lay statements and histories presented by the Veteran during the course of post-service medical treatment. Available service treatment records show no complaint, report, diagnosis, or treatment for the left shoulder or left shoulder problems during service, but do report complaints for right shoulder pain (for which the Veteran is already service-connected). At an August 2017 VA examination, objective testing of the left shoulder revealed an abnormal range of motion, with flexion at 110 degrees and abduction at 120 degrees, where a normal range of motion is 180 degrees each. When tested external rotation was at 80 degrees, shy of the normal 90 degrees, and internal rotation was at 60 degrees, where normal is 90 degrees. The examiner did not provide a diagnosis and no diagnosis exists in the record as to a disorder of the left shoulder. No imaging of the left shoulder was reported. See August 2017 C&P Exam. This post-service evidence that includes the Veteran's own medical histories made for treatment purposes, considered together with the absence of any reference to left shoulder complaints in the available service treatment records, weighs against the credibility of the Veteran's recent lay account of left shoulder injury and/or left shoulder problems during service, to include recent reports of chronic symptoms of osteoarthritis of the left shoulder. As the weight of the evidence demonstrates no left shoulder injury or disease, or "chronic" symptoms of left shoulder osteoarthritis during service, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The weight of the evidence is against a finding of “continuous” symptoms of left shoulder osteoarthritis since service, including to a compensable degree within one year of service separation. The earliest credible post-service evidence of left shoulder pain is in January 2012, approximately 30 years after service separation. The gap of approximately 30 years between service and the onset of left shoulder symptoms is one factor, along with other factors in this case, that tends to weigh against a finding of continuous symptoms of left shoulder osteoarthritis after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and evidence of a claimed disability is one factor to consider as evidence against a claim of service connection). As the weight of the evidence demonstrates no "continuous" symptoms of left shoulder osteoarthritis since service, including to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" symptoms of arthritis, as well as the criteria under 38 C.F.R. § 3.307 and § 3.309 for arthritis manifested to a degree of ten percent within one year of service separation, are not met. Although the Veteran has asserted that the current left shoulder disability is causally related to service, and causally related to other conditions of the right shoulder, back, and neck disorders, he is a lay person and, under the specific facts of this case, does not have the requisite medical expertise to be able to diagnose the left shoulder osteoarthritis or render an opinion regarding the cause of the disability where the facts of this case show no in-service left shoulder injury or disease, and no left shoulder osteoarthritis symptoms until many years after service. Osteoarthritis is complex and involves unseen systems processes and disease processes that are not observable by the five senses of a lay person, and includes various possible etiologies, only one of which involves trauma to a joint, and is diagnosable only by X-ray or similar specific specialized clinical testing; therefore, under the facts presented in this case, the Veteran is not competent to opine as to the osteoarthritis etiology. Thus, while the Veteran is competent to relate symptoms of left shoulder pain that he experienced at any time, in the absence of a left shoulder injury, disease, or symptoms as in this case, he is not competent to opine on whether there is a link between the left shoulder osteoarthritis, which were manifested many years after service separation, and active service because such diagnosis and nexus require specific medical knowledge and training. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana, at 438 (holding that ACL injury is "medically complex" for lay diagnosis); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). For these reasons, the Veteran's purported opinion that the current left shoulder osteoarthritis is the result of service is of no probative value; thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a left shoulder disability under any theory, including direct and presumptive as a chronic disease; therefore, the appeals must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection for Left Leg Muscle Spasms (Including Secondary) The Veteran generally contends that a claimed left leg muscle spasm disorder is related to the service-connected lumbar spine (lower back) disorder. See May 2015 Correspondence. Specifically, the Veteran stated that in June 1982 while in service, he went back to the doctor because pain in the lower lumbar region with spasms moving down into his legs. Initially the Board finds that the weight of the evidence shows no current disability of the left leg. See November 2015 VA Examination. In evaluating a service connection claim, evidence of a current disability is an essential element, and where not present, the claim under consideration cannot be substantiated. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability"). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). In this case, private post-service treatment records from March 1988 report that the Veteran was seen for lumbar pain with no radiation to the legs. Private treatment records concerning therapy for the lumbar spine from December 2011 do not mention any pain in the left leg. Private treatment records from October 2012 report the Veteran was seen for lumbar pain that radiates to the right leg, but did not report any problems with the left leg. Additional private treatment records from August 2013 report that the Veteran has continued treatment for right leg sciatica pain from an old job injury. And February 2014 private treatment records report pain in the lower right side of the back that radiates to the leg; suggesting once again that the pain the Veteran experienced was in the right leg. Private treatment records from February 2015 report lumbar pain with bilateral lower extremity radicular symptoms for one day only; however, no diagnosis was made concerning this one day of pain in the extremities. In a November 2015 VA examination for thoracolumbar spine that included the legs, a right lower extremity radiculopathy was found, but testing as to the left leg was found to be normal. Service treatment records from July 1983 do not contain any complaints for a left leg disorder. Service treatment records do mention a complaint of lumbar muscle spasm moving into the right leg; however, this note does not concern the left leg, as to an injury, disease, or any symptom of such. Further, the lumbar pain was not shown by evidence to suggest a sciatica or neuro disability stemming from the lumbar region; therefore, no in-service injury, disease, or event of the left leg was incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a left leg disorder, the benefit of the doubt doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection for Cervical Spine Spasms The Veteran generally contends that he has a cervical spine muscle spasms disorder that is the result of service. After a review of all the lay and medical evidence of record, the Board finds that the Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a diagnosed cervical spine disability. Service treatment records do not contain any reports of injury, treatment, complaints, or diagnosis for a neck disorder. Additionally, the June 1983 service separation examination report reflects the Veteran's neck was found to be clinically normal, and the Veteran denied a history of neck trouble on the corresponding June 1983 Report of Medical History. Post-service VA and private treatment records similarly do not reflect a treatment for a cervical spine disorder until February 2014, in which it was reported that the Veteran has recurrent neck pain “off and on due to job” as a postal worker. No diagnosis for a cervical spine disorder is found within the record, and review of post-service treatment records reveals no additional complaints, treatment, or diagnosis of a cervical spine disorder. As discussed above, with any claim for service connection, it is necessary for a current disability to be present. See Moore, 21 Vet. App. at 215; Brammer, at 225; Rabideau, 2 Vet. App. at 143-44; McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current cervical spine disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Reine Bedford, Associate Counsel