Citation Nr: 18144860 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-18 880 DATE: October 25, 2018 ORDER 1. Entitlement to service connection for residuals of an injury to the left shoulder, to include degenerative joint disease, due to a motor vehicle accident (left shoulder disability) is denied. 2. Entitlement to service connection for multilevel degenerative joint and disc disease of the cervical spine (cervical spine disability) is denied. 3. Entitlement to service connection for headaches due to a motor vehicle accident is denied. 4. Entitlement to service connection for pain and numbness of the right upper arm and lower forearm (right upper extremity disability), to include as secondary to a cervical spine disability and/or osteophytes, L2 and L4, of the lumbar spine (lumbar spine disability), is denied. 5. Entitlement to service connection for numbness of the peripheral nerves to the left arm, hand, and fingers (left upper extremity disability), to include as secondary to a cervical spine disability and/or a lumbar spine disability, is denied.   REMANDED 6. Entitlement to service connection for left side numbness and tiredness to the upper leg, including the back of the right thigh (left lower extremity numbness), to include as secondary to osteophytes, L2 and L4, of the lumbar spine, is remanded. FINDINGS OF FACT 1. The Veteran’s mild degenerative joint disease of the left shoulder did not have its onset in service, arthritis was not manifested to a compensable degree within the applicable presumptive period, continuity of symptomatology is not established; and the disability is not otherwise related to an in-service injury, event, or disease. 2. The Veteran’s cervical spine disability did not have its onset in service, arthritis was not manifested to a compensable degree within the applicable presumptive period, continuity of symptomatology is not established; and the disability is not otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a headache disability. 4. The Veteran’s right upper extremity disability is neither proximately due to or aggravated beyond its natural progression by his cervical spine or lumbar spine disability; did not have its onset in service; was not manifested to a compensable degree within one year of service discharge; continuity of symptomatology is not established; and is not otherwise related to an in-service injury, event, or disease. 5. The Veteran’s left upper extremity disability is neither proximately due to nor aggravated beyond its natural progression by his cervical spine or lumbar spine disability; did not have its onset in service; was not manifested to a compensable degree within one year of service discharge; continuity of symptomatology is not established; and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability, to include degenerative joint disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.308, 3.309. 2. The criteria for entitlement to service connection for a cervical spine disability, to include multilevel degenerative joint and disc disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for entitlement to service connection for headaches due to a motor vehicle accident have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for a right upper extremity disability, to include multilevel degenerative joint and disc disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for a left upper extremity disability, to include multilevel degenerative joint and disc disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to October 1971 and from January 1976 to March 1992. Service Connection 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. When the Veteran has a “chronic disease” listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease 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. 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 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest 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. §§ 1101, 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. The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. A lay person is competent to report to the onset and continuity of his symptomatology. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (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. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. 1. Entitlement to service connection for a left shoulder disability The Veteran contends that he continues to suffer residuals from a left shoulder injury due to a motor vehicle accident in August 1971 while the Veteran was on active duty service. The Board concludes that, while the Veteran has a diagnosis of mild degenerative joint disease of the left shoulder, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service, was not manifested to a compensable degree within one year following service, and continuity of symptomatology is not established. VA treatment records show the Veteran was not diagnosed with mild degenerative joint disease until September 2012, which is approximately 20 years after his separation from service and decades outside of the applicable presumptive period. The Veteran was provided a VA examination in September 2011, and while the Veteran was noted to have limited range of motion in his left shoulder and pain on movement, imaging studies did not show arthritis in the left shoulder at that time. Furthermore, the treatment records in the Veteran’s claims file do not indicate the Veteran began reporting symptoms of pain in his left shoulder until approximately April 2009, which is many years after his separation from active duty service. While the Veteran is competent to report having experienced symptoms of left shoulder pain he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative joint disease. As such, the Board gives more probative weight to competent medical evidence. As the more probative evidence of record does not support continuity of symptomatology or diagnosis of a chronic disease within one year of discharge from service, service connection on a presumptive basis is not warranted. Service connection for a left shoulder disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s left shoulder disability and an in-service injury, event, or disease. The September 2012 VA examiner, after reviewing the Veteran’s service treatment records (STRs) and acknowledging that the Veteran sustained an acute left shoulder injury after an August 1971 motor vehicle accident, opined that the Veteran’s current degenerative joint disease of the left shoulder was not at least as likely as not related to the Veteran’s motor vehicle accident in August 1971 or any other incident in service. The examiner noted that the Veteran did not continue to report ongoing shoulder pain after being diagnosed with a muscle strain from the August 1971 accident. In the Veteran’s numerous examinations included in the Veteran’s STRs, the Veteran did not report continuing shoulder pain, despite reporting ongoing cramps in his legs and recurrent low back pain. Additionally, the examiner noted that the Veteran’s claims file did not show treatment for right shoulder pain until 2010. Based on this rationale, the examiner opined that there was no temporal association between the Veteran’s current mild degenerative joint disease in the left shoulder and the Veteran’s acute muscle strain in August 1971. Though the Board notes that the Veteran’s claims file does indicate complaints of shoulder pain in April 2009, the Board finds that this does not invalidate the VA examiner’s opinion that the Veteran’s left shoulder injury was an acute injury which resolved prior to the Veteran’s discharge from service. Therefore, the Board finds the Veteran’s current left shoulder disability is less likely than not related to his in-service left shoulder injury, and service connection on a direct basis is denied. 2. Entitlement to service connection for a cervical spine disability The Board concludes that, while the Veteran has a diagnosis of arthritis of the cervical spine, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown in service, manifest to a compensable degree within one year following service discharge, and continuity of symptomatology is not established. VA treatment records show the Veteran was not diagnosed with mild arthritis until 2007, which is almost 15 years after his separation from service and well outside of the applicable one-year presumptive period. While the Veteran is competent to report having experienced symptoms of pain in his cervical spine he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. The Veteran’s treatment records in his claims file do not document the Veteran reporting symptoms of pain in his cervical spine until approximately 2007, which, again is almost 15 years after his separation from active duty service. As the more probative evidence of record does not support continuity of symptomatology or diagnosis of arthritis within one year of discharge from service, service connection on a presumptive basis is not warranted. The Board notes that degenerative disc disease is not a chronic disease, and thus presumptive service connection for this disability not available. Service connection for a cervical spine disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s left shoulder disability and an in-service injury, event, or disease. The September 2012 VA examiner, after reviewing the Veteran’s service treatment records (STRs) and acknowledging that the Veteran reported neck stiffness after an August 1971 motor vehicle accident and neck pain after falling off a ladder in 1980, opined that the Veteran’s cervical spine disability was not at least as likely as not related to the Veteran’s motor vehicle accident in August 1971 or any other incident in service. The examiner noted that the Veteran did not continue to report ongoing neck pain or stiffness. In the Veteran’s numerous examinations included in the Veteran’s STRs, the Veteran did not report continuing neck pain, despite reporting ongoing cramps in his legs and recurrent low back pain. Additionally, the Board notes the preponderance of the evidence in the Veteran’s claims file is against a finding of treatment for or symptoms of pain in the neck or cervical spine until approximately 2007. Based on this rationale, the examiner opined that there was no association between the Veteran’s current cervical disc disease and arthritis and the Veteran’s active duty service, including the August 1971 motor vehicle accident. The Board acknowledges that the Veteran believes there is a relationship between his current neck pain and his active duty service. However, the Veteran is not competent to provide a nexus opinion, and thus, the Board finds the opinion of the September 2012 VA examiner to be the more probative evidence. As such, the Board finds the Veteran’s current cervical spine disability is less likely than not related to his in-service neck stiffness following his August 1971 motor vehicle accident or any other incident or injury in service, and service connection on a direct basis is denied. 3. Entitlement to service connection for headaches due to a motor vehicle accident The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a headache disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. At the Veteran’s September 2012 VA examination, the Veteran reported that he had headaches following his motor vehicle accident in August 1971, noting that he used to get them two times per month. The Veteran reported at this examination that he did not have headaches anymore other than common headaches, and he was not being treated for headaches. Furthermore, the VA examiner did not diagnose the Veteran with a headache disability. As the Veteran does not have a current diagnosis of a disability, service connection for headaches is denied. 4.-5. Entitlement to service connection for a bilateral upper extremity disability, to include as secondary to a cervical spine and/or a lumbar spine disability The Veteran contends that his numbness in his bilateral upper extremities was caused by an injury to his cervical spine and back during service. As noted above, the Veteran’s claim for service connection for a cervical spine disability has been denied. Absent a service-connected cervical spine disability, service connection for a bilateral upper extremity disability cannot be granted on a secondary basis. The Board finds that service connection is also not warranted as secondary to the Veteran’s service-connected lumbar spine disability. The Veteran has not provided evidence to support a secondary relationship between the upper extremities and his service-connected lumbar spine disability. Absent evidence to support the Veteran’s bare conclusion that his upper extremity disabilities are related to his back injury in service, service-connection on a secondary basis is not warranted. The Board notes that radiculopathy is a chronic disease under 38 C.F.R. § 3.309(a). However, it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Private treatment records show the Veteran first reported numbness in his left upper extremity in approximately 2007, and treatment records do not document complaints of numbness in the right upper extremity until the Veteran filed his claim in November 2010, years after his separation from service and well outside of the applicable presumptive period. Service connection for radiculopathy in the bilateral upper extremities may still be granted on a direct basis; however, the preponderance of the evidence is against finding that the Veteran’s bilateral upper extremity radiculopathy began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran does not contend that he had numbness in his upper extremities in service, and the preponderance of the evidence in the Veteran’s STRs do not indicate treatment for or complaints of numbness in the bilateral upper extremities. The Veteran was in an accident in August 1971, but treatment records from that motor vehicle accident do not document the Veteran reported numbness stemming from a back or cervical spine disability sustained at that time. Furthermore, in subsequent examinations while in service, including a separation examination in January 1992, the Veteran did not report numbness in his upper extremities, despite noting recurrent back pain and cramping in his legs. The examiners at the Veteran’s examinations in service also did not indicate clinical abnormalities associated with numbness in the Veteran’s bilateral upper extremities. For all these reasons, the Board finds the preponderance of the evidence weighs against a finding the Veteran’s radiculopathy began while the Veteran was on active duty service, is otherwise related to service, and is not caused or aggravated by a service-connected disability. REASONS FOR REMAND 6. Entitlement to service connection for left side numbness and tiredness to the upper leg, including the back of the right thigh (left lower extremity numbness), to include as secondary to osteophytes, L2 and L4, of the lumbar spine, is remanded. When the Veteran initially filed his claim for numbness in his left lower extremity, he also filed claims for a cervical spine disability and a lumbar spine disability. The Veteran was granted service connection for osteophytes, L2 and L4, of the lumbar spine (lumbar spine disability), but his claim for a cervical spine disability was denied. Throughout the appeal, the Veteran refers to a spine disability and various diagnoses related to the spine—including his cervical spine and lumbar spine. The Veteran consistently reports that he believes the numbness in his extremities is related to a cervical spine or lumbar spine disability (the Veteran used these terms interchangeably throughout the claims file by characterizing them as a “back disability”). In the Veteran’s VA Form 9, Appeal to the Board, he asserts that he believes the numbness in his extremities is related to his back disability. In the September 2012 VA examination, the examiner opined that the Veteran’s bilateral upper extremity numbness and right lower extremity numbness was not at least as likely as not caused by the cervical spine disability, but the examiner did not provide an opinion as to whether the Veteran’s numbness in his extremities was caused or aggravated by the service-connected osteophytes, L2 and L4, of the lumbar spine. As the Veteran’s claim for a cervical spine disability is denied, as noted above, a remand is only necessary to obtain an opinion as to whether the Veteran’s numbness in his left lower extremity is at least as likely as not caused or aggravated by his service-connected osteophytes, L2 and L4, of the lumbar spine. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine whether he has a disability associated with his reported numbness in his left lower extremity and, if so, if it is related to the Veteran’s service-connected osteophytes, L2 and L4, of the lumbar spine. The examiner is asked the following questions: The examiner is also asked to determine whether the Veteran has a diagnosis of a disability associated with numbness in the left lower extremity and, if so, if it is related to the service-connected osteophytes, L2 and L4, of the lumbar spine. The examiner is asked the following questions: (a) Does the Veteran have a current diagnosis associated with numbness in the left lower extremity? Upon what facts do you base the conclusion? (b) If the Veteran has a left lower extremity disability, is it at least as likely as not (50 percent probability or greater) that it is caused by the service-connected osteophytes, L2 and L4, of the lumbar spine? (c) If the answer to (b) is negative, is it at least as likely as not (50 percent probability or greater) that the left lower extremity disability is permanently aggravated by the service-connected osteophytes, L2 and L4, of the lumbar spine? (d) If the examiner finds the Veteran’s service-connected osteophytes, L2 and L4, of the lumbar spine permanently aggravates the Veteran’s left lower extremity disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left lower extremity disability prior to aggravation. If the examiner is unable to establish a baseline for the left lower extremity disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel