Citation Nr: 1817899 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-33 927A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for cervical spine arthritis, including as secondary to bilateral shoulder disorder. 2. Entitlement to service connection for left (minor) shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to June 1980, and from September 1981 to September 1998. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2010 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) that denied the neck claim and reopened the shoulder claim for adjudication on a secondary service connection basis and denied it. In November 2015 the Veteran testified at a Board Hearing via video conference before the undersigned. A transcript of the hearing testimony is in the claims file. The Board remanded the case to the Agency of Original Jurisdiction (AOJ) in August 2016 for additional development. FINDINGS OF FACT 1. The weight of the competent evidence of record is against a finding that a cervical spine disorder had onset in active service; is otherwise causally connected to active service; or, is due to or aggravated by a service-connected disability. 2. The weight of the competent evidence of record is against a finding that a left shoulder disorder had onset in active service; is otherwise causally connected to active service; or, is due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The requirements for entitlement to service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5107(b) (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a)(3), 3.309(a), 3.310 (2017). 2. The requirements for entitlement to service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307(a)(3), 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to issuance of the March 2010 rating decision, via an April 2009 letter, VA provided the Veteran with notice. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the VA examination reports are in the claims file. Further, as noted earlier, the Board remanded the case for additional development, to include examinations. Neither the Veteran nor his representative has asserted that there are additional records to obtain, or that there was any deficiency in the examinations of record. As such, the Board will proceed to the merits of the appeal. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Applicable Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must fully consider the lay evidence of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Discussion At his hearing, the Veteran testified that his work as a track wheel mechanic entailed heavy lifting and awkward positioning. He noticed stiffness, pain, and other symptoms in active service, but he thought it was just routine pain. He took Ibuprofen for it; but-in hindsight, he now believes that the Ibuprofen may have masked an underlying disorder. He now opines that any shoulder disorder is due to the wear and tear of the demands of his work in service. The Veteran also testified that on an occasion after his active service he slipped on ice and pulled a groin muscle; and, he may have fallen on his back and shoulder. Otherwise, he did not recall any trauma to his joints. His left shoulder disorder was diagnosed in 2003. (11/24/2015 Hearing Testimony, p. 1-4) STRs dated in October 1981 note the Veteran's complaints of right-sided neck pain down to the shoulder blade and mid-back after weight lifting. Physical examination revealed the neck as supple; upper back tenderness; and, trigger points of the trapezius muscles at the T4 area. Muscle strength was 5/5, and grip strength was equal. The examiner assessed a possible muscle strain. In October 1989, the Veteran complained of shoulder and back pain x 1 day, and he denied any stressful exercise or heavy lifting. At his examination for separation from his first tour of active service, the May 1980 Report of Medical History reflects that the Veteran denied any prior history of neck or shoulder symptoms. His indication of a positive history of swollen joints referred to his left knee. The May 1980 Report of Medical Examination For Separation reflects that the upper extremities were assessed as normal. At his examination for retirement, the February 1998 Report of Medical History reflects that the Veteran denied any history of shoulder or other joint pain. The February 1998 Report of Medical Examination For Retirement reflects that the upper extremities and spine were assessed as normal. (04/18/2014 STR-Medical, 1st Entry, p. 30; 5th Entry, p. 7-12) A summary of the Veteran's medical complaints notes muscle strain in the category for minor temporary problems. (STR-4th Entry, p. 9) At a VA examination conducted in May 2008, the Veteran reported that his left shoulder disorder had onset in 2007 after he lifted a 10-pound box overhead. X-rays taken for that examination were read as negative, and the examiner diagnosed left shoulder bursitis. (05/23/2008 VA Examination) In his application to reopen the previously denied claim, the Veteran conceded that he had not reported any symptoms during his active service. However, he had been having problems "for some time now," and that his current symptoms may be due to the rigors of his MOS while in service. (03/18/2009 Correspondence) As noted earlier, the Board remanded for examinations. The September 2016 examination report reflects that the examiner conducted a review of the claims file and the Veteran's electronic medical records, and noted a diagnosis of record of cervical disc degeneration at the mid-cervical region, and that the diagnosis was entered in March 2009. The examiner noted the entries in the STRs, and that the neck was assessed as normal at separation. Also noted was the Veteran's report and the determination at the 2008 examination; private records dated in April 2013 noted the Veteran's complaints of left shoulder pain after painting in an overhead position, and that X-rays were negative; and, a May 2013 MRI examination showed partial thickness tears of the supraspinatus and biceps tendons; mild subacromial and subdeltoid bursitis; moderate degenerative changes in the AC joint; and, a later May 2013 diagnosis of impingement syndrome. The examiner noted that the reported that he had no accident, illness, or injury during active service that involved his cervical spine. He reported that he believed that having to work in weird positions in his work as a mechanic is what caused his neck pain. He reported further that when he moved his neck, he could feel a pulling sensation in his upper back and left shoulder. He pointed to the left trapezius muscle, and he stated that the area did not hurt when he separated from active duty, and he did not have any symptoms for many years but noticed a slow progression of first a tightness feeling, then a painful feeling in that area of his body. The Veteran reported that he had experienced neck pain and left shoulder pain in the distribution of the left trapezius since painting a ceiling. (09/26/2016 C&P Exam, 3rd Entry, p. 2-3) The examiner noted that March 2009 X-rays revealed degenerative changes in the cervical spine, and August 2011 X-rays showed mild progression. The shoulder examination report reflects that the same examiner conducted the neck and shoulder examinations. The examiner noted that the records revealed diagnoses of impingement syndrome, glenohumeral joint arthritis, and acromioclavicular (AC) joint arthritis. The Veteran's history is noted as the same as he reported in the neck portion of the examination. (09/26/2016 C&P Exam, 1st Entry) Pursuant to the Board remand, the AOJ asked the examiner to opine whether it was at least as likely as not that either the currently diagnosed neck disorder, left shoulder disorder, or both, either had onset in active service, or is otherwise causally connected to active service. The examiner opined in the negative to both questions. The examiner noted that the Veteran did not report any in-service incidents related to his neck, and that his neck problems did not start until approximately 11 years after active service. The examiner noted further that her review of the STRs did not disclose any entries related to the neck. The examiner noted the absence of evidence of continuous symptoms from active service, and that there was no evidence of an in-service event that could be a nexus event for the current discogenic disease. Further, the examiner noted the Veteran's personal belief that his cervical spine disorder resulted from his in-service work as a mechanic and noted that the weight of the medical literature demonstrated that the Veteran's currently diagnosed cervical disc degeneration is associated with the normal aging process. As an example, the examiner noted that autopsy studies of 50-year-olds note that 85 to 95 percent of those adults show evidence of disc degeneration. (09/26/2016 C&P Exam, p. 1-2) Concerning the left shoulder, the examiner noted the fact that there was no evidence in the STRs of a direct injury to the left shoulder, and that the currently diagnosed left shoulder disorders had onset many years after active service. Id., p. 3. The examiner reviewed the claims file, recorded and considered the Veteran's reported lay history, and provided a full rationale for the opinions provided. The evidence of record fully supports the examiner's opinion. Hence, the Board finds it highly probative and attaches significant weight to it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although there are entries in the STRs, as already noted, the Veteran himself conceded that his current symptoms started many years after his active service. He primarily stands on his lay, speculative opinion as the sole evidence in his favor. Regarding his opinion, the Board acknowledges that lay persons are fully competent to report symptoms they have experienced; and, are competent to provide etiological opinions on some medical issues, depending on the circumstances. See Kahana, 24 Vet.App. at 435; Jandreau, 492 F.3d at 1377 n. 4. The Board makes this determination on a case-by-case basis. Id. In this case, the Board finds that opining on the etiology of degenerative disc or joint disease of the cervical spine or shoulder, especially many years after active service, falls outside the realm of common knowledge of a lay person and requires medical training. See id.; see also 38 C.F.R. § 3.159(a). There is no evidence that the Veteran has medical training. Hence, any opinion by him as to etiology for his degenerative disc and joint disease is not competent and therefore lacks probative value. In light of all of the above, the Board finds that the evidence of record, including the Veteran's hearing testimony and written submissions, shows the presence of the first two criteria for service connection: currently diagnosed cervical spine and left shoulder disorders, and evidence of in-service events. Nonetheless, the preponderance of the evidence is against a finding that arthritis of either the cervical spine or left shoulder manifested at least to a compensable degree in service or within one year of active service. Further, the preponderance of the evidence is also against a finding that that the currently diagnosed cervical spine or left shoulder arthritis is otherwise causally connected to active service. Hence, the claim must be denied on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). The Veteran has also asserted that both disorders should be allowed on a secondary basis as due to the other (see 01/04/2010 VA 21-4138). In light of the Board's finding that the weight of the evidence is against both claims, there is no factual basis for allowance of service connection for either on a secondary basis. 38 C.F.R. § 3.310. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for cervical spine arthritis, including as secondary to bilateral shoulder disorder, is denied. Entitlement to service connection for left (minor) shoulder disorder, including as secondary to cervical spine disorder, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs