Citation Nr: 1819331 Decision Date: 03/29/18 Archive Date: 04/05/18 DOCKET NO. 12-03 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1966 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned Veterans' Law Judge at a February 2017 videoconference hearing, and a transcript of this hearing is of record. In July 2017, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional records. The action specified in the July 2017 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's cervical strain and degenerative disc disease did not have onset in service and was not caused by or related to his active military service. 2. The Veteran's left shoulder tendonitis did not have onset in service and was not caused by or related to his active military 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. §§ 101, 1110, 1112, 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking entitlement to service connection for a cervical spine disability and a left shoulder disability. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2017). The Veteran has a current diagnosis of cervical strain with degenerative disc disease and left biceps tendonitis. At issue is whether these conditions are related to service. At his February 2017 hearing, the Veteran testified that he injured his neck and left shoulder during basic training carrying a heavy backpack and claimed that he had continued to have problems after service. However, the Veteran's service treatment records are negative for any documented injury to the neck or shoulder. The Veteran's separation physical in June 1968 noted a normal neck, spine, and upper extremities. Post-service, there are no medical records prior to September 2002, when the Veteran sought treatment from VA. At a September 2002 VA examination, the Veteran reported that he had injured his neck and left shoulder a year ago loading equipment at work. He did not report any in-service injury at that time. VA outpatient treatment records also document that the Veteran repeatedly attributed his neck and left shoulder problems to a 2001 work-related injury. These records are negative for any association between the Veteran's current cervical spine and left shoulder problems and his active service. On remand, the RO requested the Veteran's assistance in obtaining any records related to his workers compensation claim, but he failed to return signed releases authorizing VA to obtain those records. Based on all the above evidence, the Board concludes that entitlement to service connection for a cervical spine disability and a left shoulder disability must be denied. The Veteran claimed at his personal hearing that he injured his neck and shoulder in service, and the Board concedes that the Veteran is certainly permitted to describe injuries he suffered or symptoms he experienced. However, the Board does not find the Veteran's testimony to be credible. Not only are the Veteran's service treatment records negative for any evidence of injury, but for more than a decade, the Veteran himself has consistently informed his VA treatment providers, as well as the September 2002 VA examiner, that his current neck and shoulder problems began following a 2001 injury at work and has never mentioned any additional injury, to include any injury in service. His denials on these occasions are highly probative, because he was reporting symptoms in the course of seeking medical treatment and then had no motive to misrepresent his medical history. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds the contemporaneous medical records to be significantly more probative regarding the etiology of the Veteran's current disabilities than the statements made as part of his claim for benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Furthermore, even if the Board were to assume, for the sake of argument only, that the Veteran did actually suffer some injury during basic training, the preponderance of the evidence supports a finding that such an injury did not result in a permanent disability. The Veteran's separation physical documents a normal neck, spine, and upper extremities, and there is no evidence of record showing treatment for a neck or shoulder disability prior to the Veteran's 2001 injury. The Veteran has not presented any medical evidence supporting a relationship between his active service and a condition noted more three decades later. To the extent that the Veteran himself has suggested that an injury in service somehow caused or aggravated his current cervical spine and left shoulder disabilities, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has cervical degenerative disc disease and left shoulder tendonitis due to an injury in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for a cervical spine disability and a left shoulder disability is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs