Citation Nr: 20021405 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-39 062 DATE: March 25, 2020 ORDER Service connection for a bilateral shoulder disability, to include a cervical spine disability with pain radiating to the bilateral shoulders is denied. FINDINGS OF FACT 1. Currently diagnosed arthritis of the bilateral shoulders and cervical spine did not manifest to a compensable degree within one year of service separation. 2. Symptoms of arthritis of the bilateral shoulders and cervical spine were not chronic in service and continuous since service separation. 3. Arthritis of the bilateral arthritis of the shoulders and cervical spine were not incurred in or caused by active duty service. CONCLUSION OF LAW The criteria for service connection for a bilateral shoulder disability, to include a cervical spine disability with pain radiating to the bilateral shoulders have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1952 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In October 2017, the Board denied the claim for service connection for a bilateral shoulder disability, along with the claims for service connection for a lumbar spine disability and headaches. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the parties filed a Joint Motion for Remand (JMR). The JMR provided that a remand was warranted, citing to a Colvin violation and favorable evidence of record which was not previously discussed. In a September 2018 Order, the Court granted the JMR and remanded the issues of entitlement to service connection for a bilateral shoulder disability, lumbar spine disability, and headaches to the Board. In March 2019, the Board remanded the claims for further development, to include obtaining updated VA examinations. The Veteran was afforded a July 2019 VA medical opinion and an October 2019 VA examination and medical opinion for the claim of service connection for a bilateral shoulder disability, which substantially complied with prior remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board notes that on remand, the AOJ granted service connection for the claims of a lumbar spine disability and headaches, and these claims are no longer on appeal before the Board. The Board notes that evidence has been added to the record that was not previously considered by the RO, specifically lay statements and duplicative medical evidence submitted by the Veteran, as well as medical evidence submitted by the AOJ. Although recent statutory provisions allow for an automatic waiver of initial RO review of post-substantive appeal evidence, this evidence must be submitted by the Veteran for appeals filed after February 2, 2013. See 38 U.S.C. § 7105 (e) (2012); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for the automatic waiver of AOJ review of evidence submitted directly to the Board during the appeal period for substantive appeals filed after February 2, 2013). In this case, the Veteran’s appeal was filed after February 2, 2013 in October 2014, and additional evidence associated with the claims file was submitted by both the Veteran and the AOJ. As for the evidence submitted by the AOJ after the most recent November 2019 supplemental statement of the case (SSOC), much of the record development was regarding claims not yet before the Board, and VA medical treatment records associated with the file were not pertinent to the claim for service connection on appeal. Therefore, the Board finds that the automatic waiver provisions apply to the evidence submitted by the Veteran since the most recent SSOC, and there is no indication that the Veteran would be prejudiced by proceeding with a decision at this time. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency’s determination). Entitlement to service connection for a bilateral shoulder disability, to include a cervical spine disability with pain radiating to the bilateral shoulders Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2019). 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) (2019). 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 any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, the provisions of 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. With a chronic disease shown 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) (2019). Where a veteran served ninety 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 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019). 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay 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 veteran. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2019). When a veteran seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. The Veteran, through various submissions, has reported that his neck has been sore, with pain radiating down through his bilateral shoulders, due to whiplash from a 1954 automobile accident. Within a February 2013 submission, the Veteran indicated that he had been treated for headaches for 18 years before he was told by a private physician, Dr. F, in 1972 that he had suffered from whiplash. Service treatment records do not document a motor vehicle accident, and do not include complaints, treatment or diagnosis of whiplash, a cervical spine or shoulder disability. An April 1962 reenlistment examination and January 1972 separation examination include reports of medical examination, which make note of “PM left shoulder” and “S1” back of neck”. The January 1972 report of medical examination also shows a normal clinical evaluation of the neck and upper extremities. On the report of medical history completed by the Veteran for the January 1972 separation examination shows the Veteran reported no painful or “trick” shoulder. Private treatment notes include an April 1980 consultation note, which shows the Veteran complained of pain the right side of his head, behind his ear, which caused headaches. The Veteran stated that he had this problem for 25 years following an auto accident. He indicated that he had a pinched nerve that had been corrected by adjustments in 1968 through 1977 by a Dr. F. Private chiropractic treatment records include a May 1997 negative left shoulder x-ray, showing no fracture or dislocation. A March 1999 note shows the Veteran reported sporadic, discomfort in his neck, and reported playing volleyball which stressed the upper-body. A November 1999 note shows that the Veteran was involved in a May 1999 automobile accident, in which his vehicle rolled, and the Veteran sustained damage to his neck and had been in chiropractic care all summer. The Veteran had traveled to Yuma which seemed to have exacerbated his problems with stiffness in his neck. Follow-up appointments in November 1999 through February 2000 showed the Veteran had current neck stiffness, with both shoulders tight and tender, and received supine cervical chiropractic treatment. The Veteran also complained about neck discomfort with restriction on turning his head, with grating pain that made him feel lightheaded. The Veteran reported that overall this upper-body was better in an April 2000 appointment. Private treatment records also show the Veteran attended 11 chiropractic appointments between March 2006 and December 2010 though it is not clear for what orthopedic disability the Veteran was seeking treatment. VA treatment records include an April 2013 x-ray report, which shows bilateral facet degenerative changes of the cervical spine, resulting in severe foraminal stenosis. An April 2015 treatment note shows the Veteran had reported being in a motor vehicle accident while on active duty, and had seen a chiropractor since service separation. The VA physician noted that there would be a correlation with the motor vehicle accident the Veteran experienced while on active duty as neck injuries, such as severe whiplash at that time, would have contributed to osteoarthritis such as this at this time. A September 2015 treatment note shows the Veteran reported that his neck was tight. Within a July 2015 Decision Review Officer hearing, the Veteran reported that he experienced severe whiplash in a 1954 motor vehicle accident while in service. After the accident, the Veteran indicated that he was not transferred anywhere for treatment but reported back to his ship because he didn’t think he had any problems. It wasn’t until two weeks later that the Veteran began to get headaches. The Veteran testified he sees a chiropractor for his neck to take care of his headaches. A July 2019 VA medical opinion shows that the VA examiner could not determine whether the Veteran had a bilateral shoulder, and was therefore, unable to establish a nexus to service. An October 2019 VA examination shows a diagnosis of bilateral shoulder degenerative arthritis by nuclear bone scan. Regarding the medical history, the VA examiner listed the onset of the Veteran’s bilateral shoulder disability in 1999, when the Veteran had been involved in a motor vehicle accident, involving the shoulder, and sought chiropractic treatment. In the corresponding October 2019 VA medical opinion, the VA examiner opined that diagnosed bilateral shoulder and neck disabilities were less likely than not related to active service, to include the 1954 motor vehicle accident and heavy lifting of objects as part of service duties. The VA examiner reasoned, that upon review of the record, that service treatment records did not show complaints, treatment or diagnosis of degenerative arthritis of the bilateral shoulders and degenerative arthritis of the neck, and that shoulder and neck issues are not noted until the 1990s, when the Veteran received chiropractic treatment. The examiner indicated that this was almost 40 years after the in-service motor vehicle accident, which the Veteran claims caused his shoulder disability. The VA examiner also did not find evidence of chronicity of a condition from onset in the 1950s to present. Upon review of all the evidence, lay and medical, the Board finds that arthritis of the bilateral shoulders and neck did not manifest to a compensable degree within one year of service separation. The Board notes that arthritis of the bilateral shoulders and of the neck were diagnosed by a February 2014 bone scan and April 2013 x-ray, respectively – many decades after service separation in 1972. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Private treatment records include a May 1997 x-ray of the bilateral shoulders, which was negative for arthritis. Similarly, the Board finds that the weight of the evidence does not show the Veteran had both chronic symptoms of arthritis in service and continuous service since service separation. Within a July 2015 DRO hearing, the Veteran testified that he did not receive treatment after his 1954 motor vehicle accident, and that he didn’t get treatment for headaches until two-weeks later. Service treatment records do not show treatment, complaints or a diagnosis of a bilateral shoulder or neck disability throughout service. The October 2019 VA examiner opined that there was no evidence of chronicity of a condition from onset in the 1950s to the present, also citing to no documentation of such disabilities within service treatment records. While the Veteran has reported receiving treatment since service separation for a service-connected headache disability, the first medical evidence of record demonstrating a bilateral shoulder or neck disability are within private chiropractic treatment records in the 1990s – many years after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 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 Maxon, 230 F.3d 1333. Moreover, these private chiropractic treatment records show the Veteran sought treatment after a May 1999 automobile accident, in which the Veteran sustained injuries to his neck and shoulders. The Board finds that currently diagnosed arthritis of the bilateral shoulders and neck were not incurred in or caused by active service. The Board finds probative the October 2019 VA examination, in which the VA examiner opined that currently diagnosed arthritis of the bilateral shoulders and neck were less likely than not related to active service, to include the 1954 motor vehicle accident and heavy lifting of objects as part of service duties. The VA examiner reasoned, upon review of the record, that service treatment records did not show complaints, treatment or diagnosis of degenerative arthritis of the bilateral shoulders and degenerative arthritis of the neck, and that shoulder and neck issues are not noted until the 1990s, almost 40 years after service separation. The VA examiner also reasoned, following a review of the Veteran’s self-reported history, he did not find evidence of chronicity of a condition from onset in the 1950s to present. The Board finds that the opinion is probative as it is adequately based on a review of the record, and a complete discussion of relevant findings from both the lay and medical evidence of record. The examiner also provided adequate rational for the opinion provided. And while the Veteran has cited to an April 2015 VA primary care treatment note, in which his VA physician indicated there would be a correlation with the in-service motor vehicle accident to the Veteran’s currently diagnosed arthritis of the neck, the Board does not find this opinion to be adequate. The VA physician did not review the Veteran’s entire claims file, to include service treatment records and private chiropractic treatment records which show the Veteran was involved in a May 1999 automobile accident which injured his neck and shoulders, requiring treatment. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the VA physician did not provide any rationale for his opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the VA physician’s opinion utilized conclusory and equivocal language, by stating that “there would be a correlation” between a current neck disability and an auto accident in service, which makes the opinion itself speculative. Warren v. Brown, 6 Vet. App. 4, 6 (1993) (finding physician’s statement that the Veteran’s psychiatric disorder “could have been” caused by active service was too speculative). Insomuch as the Veteran has contended that currently diagnosed arthritis of the bilateral shoulders and cervical spine are related to a 1954 automobile accident, and that he had continuous treatment since service in the form of treatment for his headaches, the Board finds that he is not competent to relate current diagnoses of arthritis to service where he did not have both chronic symptoms of arthritis of the bilateral shoulders and neck in service and continuous symptoms post-service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For these reasons, the Board has assigned more probative weight to the October 2019 VA medical opinion. The weight of the evidence does not establish a nexus between currently diagnosed arthritis of the bilateral shoulders and cervical spine to service. Accordingly, the Board finds that entitlement to service connection for a bilateral shoulder disability, to include a cervical spine disability with pain radiating to the bilateral shoulders, is not warranted. Because the weight of the evidence is against the claim, the doctrine of the benefit of the doubt is not for application. 38 U.S.C. § 5107 (2012) 38 C.F.R. § 3.102 (2019). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.