Citation Nr: 21000588 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-26 679A DATE: January 5, 2021 ORDER Entitlement to service connection for neck fusion with arthritis is denied. Entitlement to service connection for right foot arthritis is denied. Entitlement to service connection for degenerative arthritis of the right shoulder is denied. Entitlement to service connection for degenerative arthritis of the left shoulder is denied. FINDINGS OF FACT 1. The Veteran’s neck disability to include neck fusion with arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and the neck fusion with arthritis is not otherwise etiologically related to an in-service injury or disease, or caused or aggravated by a service-connected disability. 2. The Veteran’s right foot arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and arthritis of the right foot is not otherwise etiologically related to an in-service injury or disease, or caused or aggravated by a service-connected disability. 3. The Veteran’s degenerative arthritis of the left shoulder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and degenerative arthritis of the left shoulder is not otherwise etiologically related to an in-service injury or disease, or caused or aggravated by a service-connected disability. 4. The Veteran’s degenerative arthritis of the right shoulder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and degenerative arthritis of the right shoulder is not otherwise etiologically related to an in-service injury or disease, or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to direct or presumptive service connection for neck fusion with arthritis have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to direct or presumptive service connection for right foot arthritis have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to direct or presumptive service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for entitlement to direct or presumptive service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). The Veteran had active service from February 1970 to October 1971. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1970 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). In September 2017, the Veteran appeared before a Decision Review Officer (DRO) for a hearing. A copy of the hearing transcript has been associated with the record. The appeal was previously before the Board in March 2018 and September 2019, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board’s prior remand directives and the subsequent actions of the Agency of Original Jurisdiction (AOJ) will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and other organic diseases of the nervous system may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. For preexisting injury or diseases noted on examination into active service, the claimant has the burden of showing, to an equipoise evidentiary standard, that the disability increased in severity during his or her active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (explaining “[u]nder section 1153, however, the appellant bears the burden of showing that his preexisting condition worsened in service.”). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 1. Entitlement to service connection for neck fusion with arthritis The Veteran, through his representative, contends that the symptoms manifested by his neck disability began during his military service to include basic training, and that VA evaluations of the condition post-separation did not consider his lay statements. He further contends that the symptoms have been continuous, and that VA has failed to address pain alone as a disability. The Veteran’s service treatment records are negative for complaints or abnormalities pertaining to the neck. His induction physical examination report in September 1969 was silent as to any complaints relating to his neck. A July 1970 clinic note documented recurrent joint pain, described to the Veteran as rheumatism, that was being treated with injections however, the specific joint was not identified. The post-service record on appeal includes a treatment note in the Veteran’s Social Security disability file that documents pain and stiffness in his neck in January 1987 which was diagnosed as ankylosing spondylitis. The Veteran described an initial presentation of pain which gradually progressed to inability to move his neck. Both private and VA medical records, from 1987 forward, show a consistent diagnosis and treatment for ankylosing spondylosis. A private orthopedic note in May 1990 by Dr. M. A.-S. characterized the neck condition as complete fusion of the neck. Upon VA examination in December 2009, the Veteran reported neck pain. Upon review of the record and examination, the Veteran’s neck condition was assessed to be completely ankylosed with essentially no range of motion of his neck. The Veteran was afforded a VA examination in December 2019 to investigate the nature and etiology of his neck disability. For that evaluation the Veteran reported the onset of his neck problem as 1970. He also reported stiffness of the neck with no pain provided that he took his prescription medications. Driving was impaired as he did not have the ability to look over his shoulder in two axes. The loss of range of motion was noted as extreme. Upon review of the claims file and following the examination the examiner opined that the Veteran’s neck condition did not occur nor was caused by an inservice injury, event or illness. She also concluded that there was no evidence of ankylosing spondylitis or degenerative arthritis prior to service to rule out possible aggravation of a condition due to active service. As rationale for those conclusions, she pointed to no evidence of complaints in the service treatment records and review of those same records shows no treatment for the claimed condition in-service. Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the award of service connection for neck fusion with arthritis. Here, the Board finds that the most probative evidence establishes that there is no causal relationship between a current neck disability and any event, injury or illness in service. The Board affords great probative weight to the opinion of the December 2019 VA examiner that there is no medical evidence of a cognizable neck disability on active duty that was incurred in or was otherwise causally related to his active service. The Board finds the examiner’s opinion highly probative because it was based on a clinical examination of the appellant, a review of the claims file, consideration of the relevant medical and lay history, and the opinion was accompanied by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s neck disability associated with arthritis was not shown as chronic in service and there is no indication, nor is it contended, that arthritis initially manifested to a compensable degree within one year of separation, nor was it noted in service with attributable continuity of symptomatology. Although the Veteran is competent to report having experienced symptoms of neck pain followed by reduced mobility since 1970 and basic training, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis as the appellant has not demonstrated the necessary medical expertise. The cause of the appellant’s symptoms involves medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Questions of competency notwithstanding, the Board does not find the Veteran’s recent reports of continuous back or upper spine symptoms since basic training to be credible given the inconsistencies in the record. While VA and private records support a diagnosis of ankylosing spondylitis since 1987, there is a dearth of any evidence between separation in 1971 and that year from which continuity of symptoms might be inferred. Given the inconsistencies in the record, the Board finds the Veteran’s assertions of continuous symptoms since basic training to be lacking in credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The record does not support an in-service event, illness or injury, there is no claim of or evidence to support aggravation by a service-connected disability, continuous symptoms are not demonstrated, and a nexus between a current disability and service does not exist. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for right foot arthritis The Veteran generally contends that his right foot disability is related to his active service. The Veteran’s service treatment records, to include his entrance examination, are silent as to any complaints, treatment or diagnosis for a right foot condition. While those records make reference to leg pain, unspecified joint pain, back pain, seizures, black-outs and spells, a right foot condition is not described. An imaging study conducted in April 1980 documented no joint or skeletal abnormalities at the right foot. Small metallic densities were observed, but the examiner attributed those to an artifact within the film cassette. A bone scan in April 2002 to evaluate pain, suggested a possible stress fracture in the left foot, but no abnormalities for the right foot. The December 2009 VA examination report reflects the examiner’s notation of the Veteran’s intermittent use of crutches due to foot problems causing limitations to standing for 10 minutes and limitation on walking restricted to one to two blocks. History of a foot problem, to include a stress fracture, documented in the examination reported dated back to 2007. X-ray imaging confirmed moderate degenerative changes at the medial tarsometatarsal joints on the right side. Severe narrowing with subchondral sclerosis and small osteophytes were also noted. A nexus opinion was not offered. The Veteran was afforded another VA examination in December 2019 to determine the nature and etiology of his right foot disability. Upon physical examination and confirmatory imaging, the Veteran was diagnosed with mild degenerative arthritis of the right medial tarsometatarsal joints which did not chronically compromise weight-bearing. The Veteran described the initial presentation of the condition as swelling in 2009 continuing to the time of the examination without associated pain. Limitations were described as difficulty with prolonged walking and standing requiring constant use of a cane. In conclusion, the examiner opined that there was no evidence of degenerative arthritis prior to service such that aggravation by service might be indicated, and that a nexus was not otherwise established. On review, a chronic right foot condition was not noted during active service and there is no evidence of right foot arthritis manifested to a compensable degree within one year following discharge from service. Similarly, the evidence of record does not support continuity of symptomatology or aggravation by a service connected disability. While the record shows imaging verification of joint degeneration in December 2009, the Veteran has not identified any in-service event or injury or offered a specific theory of entitlement. The record simply does not contain any probative evidence relating right foot arthritis to active service. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102 3. Entitlement to service connection for a right shoulder disability 4. Entitlement to service connection for a left shoulder disability Service treatment records are silent for any complaints, treatment or diagnoses for a shoulder condition. The Veteran’s entrance examination annotated an orthopedic consult, with no pathology and normal gait, but contained no references related directly to the shoulders. In December 1979 the Veteran was hospitalized for three weeks of physical therapy to address multiple orthopedic problems which included reduced range of motion in both shoulders. At an evaluation by Dr. N.R.K. in January 1987, the doctor noted continuing reduced range of motion in elevation, abduction, internal rotation and external rotation for both shoulders. The Veteran was afforded a VA examination in December 2009 to evaluate his bilateral shoulder disability. Examination results revealed full range of motion for both shoulders with no evidence of pain associated with any of those movements. X-ray imaging documented subchondral cystic changes, downsloping of the acromion and normal acromioclavicular joint appearance for both shoulders. The left shoulder had diffuse space narrowing and reduced humero-acromial interval. The right shoulder exhibited moderate narrowing of the glenohumeral articulation. The diagnosis was bilateral shoulders joint degenerative arthritis. No nexus opinion was rendered. The Veteran underwent another VA shoulder examination in December 2019. The Veteran reported the onset of bilateral shoulder pain in basic training, with some recent symptom relief, to include pain reduction, provided by medications. The Veteran also reported stiffness, decreased range of motion and difficulty working above the head. Range of motion bilaterally was reported as abnormal and reduced, however there was no report of pain noted on examination. There was no evidence of ankylosis bilaterally however, shoulder instability testing was positive for both sides. The examiner concluded that the imaging results from 2009 confirming degenerative arthritis explained the decreased range of motion and stiffness the Veteran had most recently reported. Following review of the Veteran’s VA e-folder and completion of the in-person examination, the examiner opined that since there was no evidence of bilateral shoulder pain in the service treatment records, bilateral shoulder degenerative joint disease did not occur nor was it caused by an in-service injury, event or illness. This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is no evidence of arthritis (degenerative joint disease) in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. Additionally, there is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current bilateral shoulder degenerative joint disease and a period of the Veteran’s service. In sum, characteristic manifestations on active duty sufficient to identify the shoulder disability were not noted. The Veteran urges that his symptoms have been present since basic training, and he is competent to make such a representation. However, there is no demonstration in the medical evidence of an in-service occurrence, continuity of symptomatology or evidence of arthritis or degenerative joint disease within one year of separation from service based on the earliest presentation of symptoms or treatment in 1979. Thus, service connection cannot be awarded on a direct or presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The claim of entitlement to service connection for a bilateral shoulder disability must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.