Citation Nr: 18144371 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-29 533 DATE: October 24, 2018 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for neuropathy of the left upper extremity is denied. FINDINGS OF FACT 1. The Veteran’s cervical spine disability did not manifest in service and the preponderance of the evidence is against finding that the Veteran’s cervical spine disorder is due to a disease or injury in service. 2. The Veteran does not have a current left shoulder diagnosis. 3. The Veteran’s neuropathy of the left upper extremity did not manifest in service and the preponderance of the evidence is against finding that the Veteran’s neuropathy of the left upper extremity is due to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for entitlement to service connection for neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970 with an additional period of active duty for training (ACDUTRA) in the Army National Guard from June 1982 to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that in a May 2018 appellate brief, the Veteran’s representative addressed the issues of service connection for bilateral hearing loss, tinnitus, a neck disability, radiculopathy of the right upper extremity, radiculopathy of the left upper extremity, a left shoulder disability, and a right shoulder disability. However, in his June 2016 VA Form 9, the Veteran indicated that he only wished to appeal the issues of entitlement to service connection for a neck disability, radiculopathy of the left upper extremity, and a left shoulder disability. Accordingly, the Board’s decision is limited to these aforementioned issues. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Before becoming entitled to status as a claimant for VA benefits, an appellant must first demonstrate by a preponderance of the evidence (1) that he or she is a “veteran,” or (2) “veteran” status for the person upon whose military service the claim for VA benefits is predicated. Laruan v. West, 11 Vet. App. 80, 84-86 (1998) en banc. The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101 (2) (2012). The term “active military, naval, or air service” includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24) (2012). The Veteran contends that his disabilities arose out of an injury sustained during his period of ACDUTRA from June 1982 to July 1982. The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes “veteran” status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and post-service incurrence of disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled during the period of ACDUTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before “veteran” status is granted. 38 U.S.C § 101 (24). The Veteran was in a motor vehicle accident during the aforementioned period of ACDUTRA, resulting in the grant of service connection for a left elbow disability. Accordingly, the Board finds that “veteran” status is applicable to the Veteran’s period of ACDUTRA. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently found that pain alone can be a disability. Specifically, in Saunders v. Wilkie, No. 2017-1466 (Fed. Cir. Apr. 3, 2018) the Federal Circuit held that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit did emphasize that they were not holding a veteran could demonstrate service connection “simply by asserting subjective pain.... To establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity.” In other words, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. For certain chronic diseases, such as arthritis and neuropathy, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Although the Veteran has current diagnoses of arthritis and neuropathy, the Veteran’s contention is that these disabilities arose out of the motor vehicle accident that occurred during his period of ACDUTRA. As he had less than 90 days of active service during this period of ACDUTRA, the presumptive provisions of 38 C.F.R. § 3.303(b) and 3.307 are not applicable. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. Entitlement to service connection for a cervical spine disability The Veteran contends that his current neck disability is the result of a motor vehicle accident during his period of ACDUTRA in the Army National Guard. See August 2014 Notice of Disagreement. However, the preponderance of the evidence is against the Veteran’s claim. The Veteran’s service treatment records are absent of any complaints, symptoms, or diagnoses related to his neck. The Veteran was admitted to the hospital in June 1982 following a motor vehicle accident. A physical examination revealed a normal head and neck. A July 1982 service treatment record notes that the Veteran was in a motor vehicle accident and fractured his elbow. There is no mention of the Veteran’s neck. During a November 1982 VA examination concerning the Veteran’s left elbow, the examiner indicated the Veteran’s head, face, and neck were within normal limits. A March 2004 VA treatment record notes the Veteran complained of pain on the right side of his neck and in his right shoulder. A May 2014 VA cervical spine examination report notes that an in-person examination was conducted, includes review of the claims folder and medical records, and recounts the Veteran’s history and complaints. The diagnoses included cervical strain and degenerative arthritis of the spine. The examiner opined that it is less likely that one episode over 30 years ago is causing the Veteran’s disability, but rather, natural age progression. The examiner also noted that there were no neck findings at the time of the Veteran’s accident. The preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s cervical spine disorder and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). There are no indications the Veteran reported neck pain at any point during service, despite regular medical treatment for other injuries and ailments. The Veteran did not report a neck injury in a November 1982 VA examination, and a physical examination was grossly normal. There is no competent medical evidence documenting treatment for the Veteran’s cervical pain until March 2004, more than 20 years after separation from service. The Board finds the March 2014 VA examiner’s opinion to be the most probative evidence of record regarding the current nature, diagnosis, and etiology of the Veteran’s cervical spine disability. The examiner took the Veteran’s history and reviewed the objective record. The examiner also provided a clear and persuasive rationale with citation to the record, and the bases of this rationale are consistent with the record. The Veteran has been treated for cervical spine pain, but no examiner has indicated that it is the result of his active service. The Board has considered the Veteran’s statements regarding his cervical spine disability. The Veteran, as a lay person, is competent to describe physical symptoms, such as pain. However, he is not competent to diagnose his symptoms or attribute them to military service. Whether the Veteran’s disorder relates to service is a medically complex determination that cannot be based on lay observation alone. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). Accordingly, service connection for a cervical spine disability is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for a left shoulder disability The Veteran contends his left shoulder disability is the result of a motor vehicle accident during his period of ACDUTRA in the Army National Guard. See June 2016 VA Form 9. However, after reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the Veteran has not been diagnosed with a left shoulder disability. The Veteran’s service treatment records are absent of any symptoms of, treatment for, or diagnosis of any shoulder disabilities. A February 2014 private treatment record notes that x-rays showed some arthritis of the neck and this “can be causing some of arm pain.” A May 2014 VA shoulder and arm conditions examination report notes that an in-person examination was conducted, includes review of the claims folder and medical records, and recounts the Veteran’s history and complaints. The examiner noted the Veteran experienced “shoulder pain from neck.” However, he opined that there was no diagnosis, and the pain the Veteran experienced referred from his neck. The examiner indicated that that pain, but not weakness, fatigability or incoordination, could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time and that there is additional limitation due to pain with change in the baseline range of motion due to “pain on use or during flare-ups.” However, the examiner further reasoned stated that it would be pure speculation to state what additional range of motion loss would be present due to pain on use or during flare-ups, since the Veteran was not examined during a flare-up. The Veteran did not report that flare-ups impacted the function of his shoulder or arm. There is no objective medical evidence of record noting that the Veteran has a current diagnosis related to his left shoulder. The Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. However, the Veteran’s medical records do not show that he experiences any objective functional impairment due to his left shoulder symptoms. As such, the Veteran’s claimed left shoulder pain does not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. As the evidence demonstrates no current disability related to the Veteran’s left shoulder upon which to base a grant of service connection, at any time during the appeal period, there can be no valid claim for that benefit. See Shedden, 381 F.3d at 1167; Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 143-44. Because a current disability has not been shown by competent evidence, the Board does not reach the additional questions of in-service injury, disease, or event, or the relationship between any such current disability and service. Entitlement to service connection for neuropathy of the left upper extremity The Veteran contends that his current left upper extremity neuropathy is the result of a motor vehicle accident during his period of ACDUTRA in the Army National Guard. See August 2014 Notice of Disagreement. However, the preponderance of the evidence is against the Veteran’s claim. The Veteran’s service treatment records are absent of any symptoms of, treatment for, or diagnosis of neuropathy of the upper left extremity. As noted above, the Veteran was admitted to the hospital in June 1982 following a motor vehicle accident. However, there was no mention or complaints of any neurologic symptoms. A February 2014 private treatment record notes the Veteran reported numbness in his left arm. During the Veteran’s May 2014 VA cervical spine examination, the examiner noted the Veteran did not have any neurologic abnormalities. Private treatment records note the Veteran was seen in June 2014 for left arm paresthesia. The preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s neuropathy and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). There are no indications the Veteran reported symptoms of neuropathy at any point during service, despite regular medical treatment for other injuries and ailments. The Veteran did not report any symptoms of neuropathy in a November 1982 VA examination. A December 1982 examination noted that there was no evidence of other significant abnormality or pathology related to the Veteran’s left elbow. There is no competent medical evidence documenting treatment for the Veteran’s neuropathy until February 2014, more than 30 years after separation from service. The Veteran has been treated for left upper extremity neuropathy, but no examiner has indicated that it is the result of his active service. The Board has considered the Veteran’s statements regarding his left upper extremity neuropathy. The Veteran, as a lay person, is competent to describe physical symptoms, such as pain. However, he is not competent to diagnose his symptoms or attribute them to military service. Whether the Veteran’s disorder relates to service is a medically complex determination that cannot be based on lay observation alone. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). Accordingly, service connection for left upper extremity neuropathy is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel