Citation Nr: 21000390 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-23 513 DATE: January 5, 2021 ORDER Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected shoulder disability, is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a right ankle disorder is denied. FINDINGS OF FACT 1. The Veteran’s cervical spine disorder is not secondary to a service-connected shoulder disability and is not otherwise related to an in-service injury or disease. 2. The evidence of record is against finding that the Veteran’s right knee condition occurred in, or is the result of, his period of active duty service. 3. The evidence of record is against finding that the Veteran’s right ankle condition occurred in, or is the result of, his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected shoulder disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)–(b), 3.307(a)(3), 3.309(a), 3.310. 2. The criteria for entitlement to service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)–(b), 3.307(a)(3), 3.309(a). 3. The criteria for entitlement to service connection for a right ankle disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)–(b), 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1977 and from October 1978 to October 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 Decision Letter by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A Board hearing was conducted at the RO in Atlanta, Georgia. A transcript of this hearing is contained within the electronic claims file. See March 16, 2017, Hearing Transcript (Tr.). The Veterans Law Judge (VLJ) who conducted the hearing no longer serves in that capacity. Thus, VA sent, in October 2020, to the Veteran a letter notifying him that he had the option to have an additional hearing or to proceed with adjudication. Failure to respond within thirty days to the letter would result in adjudication without an additional hearing. As of the date of this decision, the Board has received from the Veteran no correspondence regarding this matter. Thus, it is satisfied that the due process requirements concerning hearings have been respected, and it will proceed to adjudicate this appeal. See 38 U.S.C.§ 7102(a); 38 C.F.R. § 20.604. The Veteran asserts that the general rigors of service have caused his conditions. See June 24, 2014, VA Form 9; January 16, 2013, Notice of Disagreement (NOD). In the alternative and with respect to his neck, he argues that it is secondary to his shoulder. See July 2, 2015, Correspondence. This appeal has been remanded by the Board on two prior occasions. In a June 2018 remand and with respect to the right knee, the Board noted that the Veteran never received an initial examination and opinion, so remand was required to secure those. As to the right ankle issue, the Board noted that a May 2012 VA opinion was inadequate as it was based entirely on the absence of in-service complaints for ankle problems. Regarding the cervical spine, a November 2015 VA examiner noted that it was not secondary to any other service-connected condition, but otherwise did not address whether it directly was related to service. Thus, a new opinion was warranted on that front. In April 2019, VA afforded the Veteran examinations for all conditions and obtained medical opinions. Upon readjudication in January 2020, the Board again remanded these claims. Specifically, it noted that the examiner previously was instructed to address the Veteran’s specific contentions; yet, the examiner’s rationale for the negative opinions was a lack of objective medical evidence to support the Veteran’s claims. The Board further noted that the November 2015 secondary opinion did not address the aggravation possibility under a secondary theory. Thus, remand further was required to obtain an opinion to ask whether the Veteran’s cervical spine condition is aggravated by a shoulder condition. In February 2020, VA obtained the addendum opinions (discussed more fully below). Thus, having found that VA substantially has complied with the Board’s prior remand directives, it now will adjudicate these claims. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of ten percent within one year following discharge from service. When a chronic disease is not shown to have manifested to a compensable degree within one year after service, there is required, under 38 C.F.R. § 3.303(b), a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a). To establish secondary service connection, a veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond natural progression by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected right shoulder disability, is denied. Service treatment records (STRs) do not contain complaints of, treatment for, or diagnosis of any neck condition. The Veteran’s July 1995 separation examination notes a normal neck and spine upon clinical evaluation. A post-service June 2012 VA medical center (VAMC) record documents the Veteran’s first complaints of neck pain. At that time, the Veteran indicated that he has had neck pain for years, which started getting worse a couple years ago. Private treatment records from Dr. J.P. from October– December 2014 are of record. By December 2014, the Veteran had cervicalgia and receives a prescription for pain. The records indicate gradually worsening axial neck pain with occasional radicular symptoms to both hands without weakness. His pain is worse with neck extension and lateral rotation. Conservative therapy and physical therapy have failed, and medication is not helping; although, the Veteran received 75 percent pain relief from facet injections at the C3–4, C4–5, and C5–6. Dr. J.P. noted that the Veteran “was in the military carrying a lot of heavy equipment and [in an] MVA several years ago.” A November 2015 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report notes a diagnosis of degenerative arthritis of the cervical spine. The Veteran reported neck pain to have an onset date of 2010 and claimed it secondarily to his shoulder. That examiner noted that “left shoulder joint condition [cannot] cause neck condition medically.” At his hearing, the Veteran testified that his neck used to “bother [him] in . . . service . . . .” Tr. at 6. An April 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. There, the Veteran stated that his neck pain began in 1992. While driving in the woods for a training exercise, a tree fell on the vehicle, injuring his neck. The neck pain allegedly has been on and off ever since. The examiner also noted a degenerative condition in the Veteran’s cervical spine; however, because the Board previously has held the associated medical opinion to be inadequate, it herein will not be discussed. With respect to the secondary opinion for the neck, February 2020 examiner stated the following: Arthritis of the neck has no relation to right shoulder acromioclavicular joint osteoarthritis and/or left shoulder degenerative arthritis. Arthritis of the neck is an inflammatory condition felt to be caused by overuse and normal aging of the vertebrae of the neck. Right shoulder acromioclavicular joint osteoarthritis and/or left shoulder degenerative arthritis does not contribute to overuse of the neck, and therefore does not lead to arthritis of the neck. The same rationale was supplied for aggravation. In providing a negative opinion for direct service connection, the examiner stated the following: All the Veteran’s assertions were addressed in depth in the April 2019 opinion, and I concur with that opinion, that the cervical spine, right knee, or right ankle disorders are NOT at least as likely as not incurred in or otherwise related to an in-service injury, to include the physical demands of combat service in Southwest Asia, or a September 1975 right knee injury. *** Regarding the neck pain in 1992 after a tree fell on his vehicle, persisting “on and off” ever since: the neck pain that is reported to have [begiun] in 1992 was three years before retirement, yet the Veteran completed those last three years with no chronic reports of a neck injury in the STR, and no permanent profile for the neck. Also, the 7/13/95 retirement exam is silent for any mention of a neck condition. Any report of the neck condition persisting “on and off” over the years can >50% likelihood be attributed to the work and homelife activities the Veteran has engaged in since his retirement ([spanning] 16yrs) and his advancing age (Veteran was 56yo in May 2012). The Board recognizes that Veteran currently has a degenerative condition of his cervical spine. Thus, the first element of service connection, both on a direct and secondary basis has been established. See Romanowsky, 26 Vet. App. at 293; Allen, 7 Vet. App. at 446; 38 C.F.R. §§ 3.303(a), 3.310. The record, however, does not reveal that this diagnosis was rendered until 2014 in Dr. J.P.’s records. As 2014 was not within one year of separation from service, presumptive service connection for a chronic condition is not applicable. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Likewise, because there are no records that symptoms of an arthritic condition existed since service into the present, the application of service connection based on continuity of symptomatology also is inapplicable. See 38 C.F.R. § 3.303(b). Turning back to the principles of direct service connection, the Board finds that, given the Veteran’s roughly twenty years of service, he would have engaged in substantial amounts of physical training and heavy lifting/carrying. Thus, the second element for direct service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). With respect to the third element of direct service connection, however, the Board finds the evidence of record insufficient. As the February 2020 examiner explained, the Veteran’s neck condition more likely is related to his post-service life activities and advancing age than it is his time in service. The examiner also noted that there were no complaints in service and that there was a normal separation examination. The Veteran also has contradicted himself throughout the record. In the November 2015 examination, the Veteran relayed to the examiner that pain began around 2010, which the Veteran attributed to his shoulder. In the April 2019 examination report, however, the Veteran states that pain began around 1992 and continued on and off since that time. Assuming the latter is true, that allegation still is underscored by the other evidence of record. It is important to note that the Veteran did not begin to seek medical attention for his neck until 2012—roughly seventeen years after service – and this is a factor that weighs against the appeal See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). This large temporal gap, in conjunction with the varying factual details of the Veteran’s memory, further leads the Board to conclude that such statements by the Veteran lack credibility. While the Veteran may sincerely believe that his neck condition is related to service, he is not competent to render such a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As the only competent and credible medical opinion of record, uncontradicted by the other competent and credible evidence of record, the Board affords the February 2020 VA opinion considerable probative value on appeal. Thus, the Board finds that the third element of direct service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The Board acknowledges that the Veteran currently is service connected for each shoulder. Thus, the second element of secondary service connection has been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. With respect to the third element of secondary service connection, the Board finds that the record is insufficient. The November 2015 and February 2020 VA examiners both agree that the Veteran’s neck condition could not be caused by his shoulder conditions, and the February 2020 examiner additionally noted that it could not be aggravated, as arthritis in shoulders medically cannot cause or aggravate arthritis in the neck. While the Veteran may sincerely believe that his neck condition is related to service or a service-connected disability, he is not competent to render such a complex medical opinion. See Jandreau, 492 F. 3d at 1377. As the only competent and credible medical opinions, uncontradicted by the other competent and credible evidence of record, the Board affords the November 2015 and September 2020 opinions considerable probative value on appeal. As such, the Board finds that the third element of secondary service connection has not been established. See Allen, 7 Vet. App. at 446; 38 C.F.R. § 3.310. Because the evidence of record does not support the Veteran’s claim for entitlement to service connection for a cervical spine condition, to include as secondary to service-connected shoulder conditions, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. Entitlement to service connection for a right knee disorder is denied. STRs note that, in September 1975, the Veteran injured his right knee while playing football. An evaluation showed that the bony structures were intact with no evidence of fracture or dislocation. The July 1995 separation examination noted normal lower extremities. On the corresponding separation report of medical history (RMH), the Veteran noted painful or swollen joints which was noted as elbow and left shoulder. He indicated no trick or locked knee. Until the post-service April 2019 VA examination, the record does not contain complaints of right knee pain or a diagnosis thereof. That examination conducted diagnostic imagining that confirmed degenerative joint disease (DJD) in the right knee. As noted above, the associated medical opinion was inadequate, so it herein will not be discussed. The February 2020 examiner, in noting that the Veteran’s knee condition was not related to service, stated the following: All the Veteran’s assertions were addressed in depth in the April 2019 opinion, and I concur with that opinion, that the cervical spine, right knee, or right ankle disorders are NOT at least as likely as not incurred in or otherwise related to an in-service injury, to include the physical demands of combat service in Southwest Asia, or a September 1975 right knee injury. *** Regarding the right knee pain in 1983 persisting “on and off” ever since; the right knee pain that is reported to have [begun] in 1983 was twelve years before retirement, yet the Veteran completed those last twelve years with no chronic reports of an knee injury in the STR, and no permanent profile for the knee. Also, the 7/13/95 retirement exam is silent for any mention of [a] knee condition. Any report of the knee condition persisting “on and off” over the years can >50% likelihood be attributed to the work and homelife activities the Veteran has engaged in since his retirement ([spanning] 16yrs) and his advancing age (Veteran was 56yo in May 2012). The Board recognizes that Veteran currently has a degenerative condition of his right knee. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The record, however, does not reveal that this diagnosis was rendered until the April 2019 VA examination. As 2019 was not within one year of separation from service, presumptive service connection for a chronic condition is not applicable. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Likewise, because there are no records that show symptoms of an arthritic condition since service into the present, the application of service connection based on continuity of symptomatology also is inapplicable. See 38 C.F.R. § 3.303(b). Turning back to the principles of direct service connection, the Board finds that, the STRs document an in-service right knee injury. Thus, the second element for service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). With respect to the third element, however, the Board finds the evidence of record insufficient. As the February 2020 examiner explained, the Veteran’s right knee condition more likely is related to his post-service life activities and advancing age than it is his time in service. The examiner also noted that there were no continuous complaints during service and that there was a normal separation examination. The Veteran alleges that he had pain “on and off” since his time in service, but that claim is contradicted by the other evidence of record. The post-service medical records do not document that the Veteran had care for his knee or that he even complained of pain. This absence of treatment further leads the Board to conclude that such statements by the Veteran lack credibility. See Maxson, 230 F.3d at 1333 (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). And while the Veteran may sincerely believe that his neck condition is related to service, he is not competent to render such a complex medical opinion. See Jandreau, 492 F. 3d at 1377. As the only competent and credible medical opinion of record, uncontradicted by the other competent and credible evidence of record, the Board affords the February 2020 medical opinion considerable probative value on appeal. Thus, the Board finds that the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Veteran’s claim for entitlement to service connection for a right knee condition, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). 3. Entitlement to service connection for a right ankle disorder is denied. STRs do not contain complaints of, treatment for, or diagnosis of any right ankle condition. The July 1995 separation examination noted normal lower extremities. A May 2012 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report indicates a diagnosis of a right ankle strain, right ankle DJD, and a right calcaneal spur. Because the associated opinion previously was found to be inadequate, it herein will not be discussed. A November 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report confirmed the Veteran’s degenerative condition. Likewise, because this opinion also was deemed inadequate, it will be overlooked. The February 2020 examiner, in noting that the Veteran’s knee condition was not related to service, stated the following: All the Veteran’s assertions were addressed in depth in the April 2019 opinion, and I concur with that opinion, that the cervical spine, right knee, or right ankle disorders are NOT at least as likely as not incurred in or otherwise related to an in-service injury, to include the physical demands of combat service in Southwest Asia, or a September 1975 right knee injury. Also, to address the Veteran’s report at the May 2012 VA examination of right ankle pain in 1990 after stepping in a hole during training and turning the ankle a few times, and his reports at the April 2019 VA examination of right ankle pain in 1989 persisting “on and off” ever since, of right knee pain in 1983 persisting “on and off” ever since, and of neck pain in 1992 after a tree fell on his vehicle, persisting “on and off” ever since: the right ankle pain that is reported to have [begun] in 1989 (or possibility 1990 depending on which written account is referenced) was six years before retirement, yet the Veteran completed those last six years with no report of an ankle injury in the STR, and no profile for the ankle. Also, the 7/13/95 retirement exam is silent for any mention of an ankle condition. Any report of the ankle condition persisting “on and off” over the years can >50% likelihood be attributed to the work and homelife activities the Veteran has engaged in since his retirement ([spanning] 16yrs) and his advancing age (Veteran was 56yo in May 2012). The Board recognizes that Veteran currently has a degenerative condition of his right ankle. Thus, the first element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The record, however, does not reveal that this diagnosis was rendered until the April 2019 VA examination. As 2019 was not within one year of separation from service, presumptive service connection for a chronic condition is not applicable. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Likewise, because there are no records that show symptoms of an arthritic condition since service into the present, the application of service connection based on continuity of symptomatology also is inapplicable. See 38 C.F.R. § 3.303(b). Turning back to the elements of direct service connection, the Board finds that, given the Veteran’s roughly twenty years of service, he would have engaged in substantial amounts of physical training and heavy lifting/carrying. Thus, the second element for direct service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). With respect to the third element, however, the Board finds the evidence of record insufficient. As the February 2020 examiner explained, the Veteran’s right ankle condition more likely is related to his post-service life activities and advancing age than it is his time in service. The examiner also noted that there were no continuous complaints during service and that there was a normal separation examination. The Veteran alleges that he had pain “on and off” since his time in service, but that claim is contradicted by the other evidence of record. The post-service medical records do not document that the Veteran had care for his right ankle or that he even complained of pain. This long absence of treatment further leads the Board to conclude that such statements by the Veteran are not credible. See Maxson, 230 F.3d at 1333 (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). And while the Veteran may sincerely believe that his neck condition is related to service, he is not competent to render such a complex medical opinion. See Jandreau, 492 F. 3d at 1377. As the only competent and credible medical opinion of record, uncontradicted by the other competent and credible evidence of record, the Board affords this opinion considerable probative value on appeal. Thus, the Board finds that the third element of service connection has not been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record does not support the Veteran’s claim for entitlement to service connection for a right ankle condition, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel 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.