Citation Nr: 21000288 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-30 948 DATE: January 5, 2021 ORDER Entitlement to service connection of neck disability is denied. Entitlement to service connection of right shoulder disability is denied. Entitlement to service connection of left shoulder disability is denied. FINDINGS OF FACT 1. The weight of the most probative evidence of record is against a finding that the Veteran’s neck disability began during active service or is otherwise related to an in-service injury or disease. 2. The weight of the most probative evidence of record is against a finding that the Veteran’s right shoulder disability began during active service, is otherwise related to an in-service injury or disease, manifested to a compensable degree within one year of service, or has been manifested by continuous symptoms since service. 3. The weight of the most probative evidence of record is against a finding that the Veteran’s left shoulder disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for neck disability due to service or service-connected disease or injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for right shoulder disability due to service or service-connected disease or injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for left shoulder disability due to service or service-connected disease or injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from November 1981 to February 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded these matters to the RO for additional development, and again in August 2020. Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38C.F.R.§3.310 (a). Service connection may also be granted on a secondary basis where a condition is aggravated by a service-connected disability. 38C.F.R.§3.310 (b). To warrant service connection on a secondary basis, the evidence must show that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Compensation for secondary service connection based on aggravation of a non-service-connected condition is only warranted for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Neck disability The Veteran contends that the wear and tear on his neck while on active duty has caused it to be weaker now (12/14/2017 Form 9). The Veteran has documented post service treatment for neck pain and a current diagnosis of cervical strain, meeting the first element of service connection (4/17/2017 CAPRI, pg. 1; 10/07/2019 C&P Exam). With respect to an in-service injury or disease, the service treatment records show complaints of back pain and reveal a fall from a tank in 1987. During his November 1989 separation physical, the Veteran’s back pain was noted to be on off type episodic pain, with no sequelae (3/28/2015 STR –Medical, pg. 16). Post-service treatment records include a March 2017 note indicates a normal cervical spine (9/12/2019 CAPRI, pg. 165). A September 2019 radiology exam and interpretation reveal the impression of a normal cervical spine (10/07/2019 C&P Exam, pg. 2). The Veteran was afforded a September 2019 VA examination of his neck (10/7/2019 C&P Exam). The examiner opined the claimed condition was less likely than not (less than fifty percent probability) incurred in or caused by the claimed in service injury, event or illness. The examiner explained that even though the separation physical form does not specifically ask about cervical pain, his active duty treatment records from 1985 suggest lower back pain. Records from 2017 report that neck pain comes from his shoulders and is due to wear and tear/work as a truck driver. There is no evidence of neck pain from the time of separation in 1989 over the next twenty plus years after his separation from service (10/07/2019 C&P Exam). An October 2020 addendum opinion clarified that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected condition of his left wrist. In this regard, the examiner explained that the neck is not anatomically dependent upon the wrist for support of function. The condition of the neck is due to something intrinsic to the neck and not the left wrist. The examiner cited to Oxford's Textbook on Orthopedics and Trauma, concluding no causal nexus is plausible. The October 2020 addendum also addressed the Veteran’s lay statements finding they are not supported by literature. While Veteran believes his neck strain and pain is related to overuse during service, he has not been shown to possess the medical knowledge necessary to competently assess that his current neck disability was incurred in-service. See Jandreau v. Nicholson, 492 F.3d at 1377. Here, the September 2019 opinion and October 2020 addendum were provided by VA medical professionals who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinions are shown to have been based on a review of the Veteran’s record and are accompanied by a sufficient explanation as to why the Veteran’s neck disability is not related to service or service-connected injury. The Board assigns high probative weight to the September 2019 and October 2020 medical opinions. Moreover, no other competent evidence of record refutes these opinions. Finally, as arthritis has not been established, the disability in question is not a chronic disease under 38 C.F.R. § 3.309(a) and thus service connection is not warranted based on continuity of symptomatology alone. Based on the foregoing, while the Veteran has a current diagnosis of neck strain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. As the preponderance of the evidence is against entitlement to service connection for a back disability, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. See 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Right shoulder disability. The Veteran contends the wear and tear on his shoulders while on active duty has caused them to weaken. He has also asserted that as a result of his service-connected left wrist and the changes in how his elbow and left wrist function, he has developed problems with his shoulders (12/14/2017 Form 9, pg. 2). The Veteran is service connected for a left wrist disability (2/27/2020 Rating Decision - Codesheet). The question for the Board is whether the Veteran’s diagnosed right shoulder labral tear and right acromioclavicular joint osteoarthritis (10/07/2019 C&P Exam, pg. 4) began during service or are at least as likely as not related to an in-service injury, event, or disease. With respect to an in-service injury or disease, the Veteran’s service treatment records do not reveal complaints or treatment referable to the right shoulder. In this regard, the Board has considered the Veteran’s statement that spending too much time in sick call was frowned upon at the time that he served (6/08/2017 NOD). At the end of his service, however, the Veteran also denied painful or trick shoulder during his separation physical (3/28/2015 STR – Medical, pg. 15). While the fact that the Veteran did not report symptoms of a right shoulder disability when provided the opportunity in his Report of Medical History, and a right shoulder disability was not diagnosed by the examiner in the Report of Medical examination is not dispositive, it is for consideration, and weighs against the current appeal. Post-service treatment reveals various complaints of right shoulder pain, most notably in March 2017 he described bilateral shoulder pain. The Veteran complained that the shoulder pain arose suddenly and had been bothering him for at least 10 years (9/17/2019 CAPRI, pg. 130). In July 2019, the Veteran complained of right shoulder pain and described having fallen on his right shoulder two to three years ago and reported right shoulder pain since then (9/12/2019 CAPRI, pg. 39). The Veteran was afforded a VA examination for his shoulders in September 2019. The examiner opined the Veteran’s right shoulder disability was not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained there was no evidence of any shoulder complaints in the Veteran’s active duty records and emphasized post service records indicating the Veteran’s right shoulder problems started a few years ago when he fell on his shoulder, working as a truck driver. There is one record stating right shoulder problems started with wear and tear 10 years ago. At the time of that statement, the Veteran was out of the service for almost 20 years (10/07/2019 C&P Exam, pg. 3). An October 2020 addendum opinion clarified that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected condition of his left wrist. The examiner explained the shoulder is not anatomically dependent upon the wrist for support or function. It is not unusual for two joints to share properties in the same person, but one joint’s disease does not “spread” to another or cause damage to it. The condition of the shoulder is due to something intrinsic to the shoulder and not the service-connected wrist. The examiner cited Oxford's Textbook on Orthopedics and Trauma and indicated a causal nexus is not plausible. The examiner indicated the Veteran’s lay assertions are not supported by medical literature (10/26/2020 C&P Exam). The Board acknowledges the Veteran’s belief that his right shoulder condition is due to in-service wear and tear or secondary to his left wrist. The Veteran however has not been shown to possess the medical knowledge necessary to competently assess the nature and etiology of any right shoulder disability or opine his right shoulder disability was incurred in-service. See Jandreau v. Nicholson, 492 F.3d at 1377. The September 2019 and October 2020 opinions were provided by VA medical professionals who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinions were based on a review of the Veteran’s record and were accompanied by a sufficient explanation as to why the Veteran’s right shoulder disability is not related to service or his service-connected left wrist disability. The Board places high probative weight on the September 2019 and October 2020 opinions, weighing against the Veteran’s claim. Moreover, no other competent evidence of record refutes these opinions. Based on the foregoing, while the Veteran has a current diagnosis of right shoulder labral tear and right acromioclavicular joint osteoarthritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Board has considered the Veteran is diagnosed with right acromioclavicular joint osteoarthritis, and while arthritis is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), the most probative evidence of record does not show a right shoulder disability manifest to a compensable degree within one year from separation from service. Therefore, service connection on a presumptive basis is not warranted for right acromioclavicular joint osteoarthritis. Service connection is also possible for arthritis under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s lay statements of his right shoulder pain being due to in service wear and tear, implying that he has suffered right shoulder pain since service. The probative medical evidence of record and statements made by the Veteran during treatment in 2017 weigh against a finding of continuity of symptomatology. The Veteran’s March 2017 statement of his shoulder bothering him for at least 10 years, places the onset after service. At this time, the Veteran associated the onset of his pain with his truck driving. 2019 records describe a fall onto his right shoulder in the 2016/2017 timeframe as the onset of his shoulder pain (9/17/2019 CAPRI pgs. 31 and 130). The Board finds that any statements as to continuity of symptoms referable to the right shoulder since service are not credible based on conflicting post service statements made by the Veteran regarding the onset of his shoulder pain. In light of the foregoing, while the Veteran has a current diagnosis of right shoulder labral tear and right acromioclavicular joint osteoarthritis, the preponderance of the evidence is against finding that it began during active service, is otherwise related to an in-service injury, event, or disease, manifest to a compensable degree within the presumptive period or manifest with continuity of symptomatology since service. As the preponderance of the evidence is against entitlement to service connection for a back disability, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. See 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Left shoulder disability. The Veteran contends the wear and tear on his shoulders while on active duty has caused them to weaken. He has also asserted that as a result of his service-connected left wrist and the changes in how his elbow and left wrist function, he has developed problems with his shoulders (12/14/2017 Form 9, pg. 2). The Veteran is service connected for a left wrist disability (2/27/2020 Rating Decision - Codesheet). The question for the Board is whether the Veteran’s currently diagnosed left shoulder strain (10/07/2019 C&P Exam, pg. 4) began during service or is at least as likely as not related to an in-service injury, event, or disease. With respect to an in-service injury or disease, the service treatment records do not reveal left shoulder complaints of injury or receipt of treatment for his shoulder. The Board has again considered the Veteran’s statement that spending too much time in sick call was frowned upon at the time that he served (6/08/2017 NOD). During his separation physical, the Veteran denied painful or trick shoulder (3/28/2015 STR – Medical, pg. 15). While the fact that the Veteran did not report symptoms left shoulder disability and a left shoulder disability was not diagnosed by the examiner upon separation is not dispositive, it is for consideration, and weighs against the current appeal. Post-service medical treatment reveals various complaints of left shoulder pain, most notably in March 2017, when he described bilateral shoulder pain, with the left being worse, coming out of the blue, more than ten years prior (9/17/2019 CAPRI, pg. 130). In December 2017, the Veteran complained that his left shoulder pain began one year prior, and did not recall any injury causing the pain (9/17/2019 CAPRI, pg. 31). A September 2019 radiology examination of the left shoulder and interpretation is of record. The reported impression was negative for the left shoulder views of the left shoulder in internal and external rotation reveal no fracture or other significant bone, joint or soft tissue abnormality. No radiographic evidence for arthritis. (10/07/2019 C&P Exam, pg. 3). The Veteran was afforded a September 2019 VA examination for his shoulders. The examiner opined the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event, or illness (10/07/2019 C&P Exam, pg. 3). The examiner indicated there was no evidence supporting the Veteran’s claim. A September 2019 radiology examination of the left shoulder and interpretation is of record. The reported impression was negative for the left shoulder views of the left shoulder in internal and external rotation reveal no fracture or other significant bone, joint or soft tissue abnormality. There was no radiographic evidence of arthritis. (10/07/2019 C&P Exam, pg. 3). With regard to secondary service connection to the Veteran’s left wrist, the September 2019 examiner opined the left shoulder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner indicated there is no plausible medical explanation to explain how the left wrist condition would cause aggravation of the left shoulder. Due to the left wrist injury and lack of range of motion in left wrist, one would expect that he uses the left arm less, hence providing more of a protective effect on the left shoulder from lack of use/ lack of wear and tear (10/07/2019 C&P Exam). An October 2020 addendum opinion clarified that the shoulder is not anatomically dependent on the wrist for support or function. It is not unusual for two joints to share properties in the same person, but one joint’s disease does not “spread” to another or cause damage to it. The condition of the shoulder is due to something intrinsic to the shoulder and not the service-connected wrist. The examiner opined no aggravation is plausible (10/26/2020 C&P Exam, pg. 3). The Board acknowledges the Veteran’s belief that his left shoulder condition is due to in-service wear and tear and alternatively secondary to his service-connected left wrist disability. However, he has not been shown to possess the medical knowledge necessary to competently assess the nature and etiology of any right shoulder disability or opine his right shoulder disability was incurred in-service. See Jandreau v. Nicholson, 492 F.3d at 1377. The September 2019 x-ray results, the September 2019 examination and opinion, and October 2020 addendum opinions were provided by VA medical professionals who possesses the necessary education, training, and expertise to provide the requested opinion. The opinions were based on a review of the Veteran’s record and are accompanied by a sufficient explanation as to why the Veteran’s left shoulder disability is not related to service or his service-connected left wrist disability. The Board places high probative weight on the September 2019 and October 2020 opinions, weighing against the Veteran’s claim. Moreover, no other competent evidence of record refutes these opinions. Finally, as left shoulder arthritis has not been established, the disability in question is not a chronic disease under 38 C.F.R. § 3.309(a) and thus service connection is not warranted based on continuity of symptomatology alone. Based on the foregoing, while the Veteran has a current diagnosis of left shoulder strain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. As the preponderance of the evidence is against entitlement to service connection for a left shoulder disability, on either a direct or secondary basis, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. See 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.