Citation Nr: 21065355 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-40 886 DATE: October 25, 2021 ORDER The claim for service connection for bilateral lower extremity radiculopathy (claimed as right and left leg condition) is denied. The claim for service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and major depressive disorder, is denied. The claim for service connection for a right shoulder disability is denied. The claim for service connection for a right wrist disability, to include right carpal tunnel syndrome, is denied. The claim for service connection for a cervical spine disability is denied. The claim for service connection for a lumbar spine disability (claimed as ankylosis) is denied. The claim for a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have bilateral lower extremity radiculopathy. 2. The Veteran does not have an acquired psychiatric disorder. 3. The Veteran's right shoulder disability was first demonstrated years after service and the weight of the evidence establishes it is not etiologically related to an in-service injury or disease. 4. The Veteran's right wrist disability was first demonstrated years after service and the weight of the evidence establishes it is not etiologically related to an in-service injury or disease. 5. The Veteran's cervical spine disability was first demonstrated years after service and the weight of the evidence establishes it is not etiologically related to an in-service injury or disease. 6. The Veteran's lumbar spine disability was first demonstrated years after service and the weight of the evidence establishes it is not etiologically related to an in-service injury or disease. 7. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. Bilateral lower extremity radiculopathy was not incurred or aggravated during active military service. 38 U.S.C. §§ 101, 1101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.303. 2. An acquired psychiatric disorder, to include generalized anxiety disorder and major depressive disorder, was not incurred or aggravated during active military service. 38 U.S.C. §§ 101, 1101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.303. 3. A right shoulder disability was not incurred or aggravated during active military service. 38 U.S.C. §§ 101, 1101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.303. 4. A chronic right wrist disability, to include carpal tunnel syndrome, was not incurred or aggravated during active military service. 38 U.S.C. §§ 101, 1101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.303. 5. A cervical spine disability was not incurred or aggravated during active military service. 38 U.S.C. §§ 101, 1101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.303. 6. A lumbar spine disability was not incurred or aggravated during active military service. 38 U.S.C. §§ 101, 1101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.303. 7. The criteria for entitlement to TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served an extended period of active duty for training (ACDUTRA) from September 1969 to March 1970 with subsequent periods of ACDUTRA with the Army National Guard of Puerto Rico. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously before the Board in November 2018 when they were remanded for additional development. They have now returned to the Board for further appellate action. 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). The term active military, naval, or air service means active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); Biggins v. Derwinski, 1 Vet. App. 474, 477 78 (1991). Annual two-week training is an example of ACDUTRA. Certain evidentiary presumptions such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, including arthritis, which manifest themselves to a degree of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.304 (b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470 471 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999). As a preliminary matter, the Board notes that the Veteran's service treatment records (STRs) are unfortunately not available for inclusion in the claims file. The RO has made multiple requests for the Veteran's STRs from various sources and from the Veteran himself. The RO concluded in an October 2013 memorandum that all avenues to obtain the missing records had been exhausted. The Veteran was duly notified about the missing STRs in October 2013. When a Veteran's STRs are unavailable through no fault of his own, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). The Board's analysis of the Veteran's claims has been undertaken with consideration of this heightened duty. 1. Entitlement to service connection for bilateral lower extremity radiculopathy 2. Entitlement to service connection for an acquired psychiatric disability. The Veteran contends that service connection is warranted for bilateral radiculopathy of the lower extremities and an acquired psychiatric disorder. The Board concludes that the Veteran does not have radiculopathy of the lower extremities or an acquired psychiatric disorder and has not had these disabilities at any time during the claims period. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As noted above, the Veteran's STRs are not available for inclusion in the claims file; however, the Board observes that injuries and conditions documented during active service are not sufficient to establish the presence of a current disability. The requirement of a current disability is met by evidence of disability at the time of filing or at any point during the pendency of the claim. Romanowsky at 293 (finding that the Board must address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain at 323. Thus, the absence of service records does not have a large impact in this case as the service records cannot establish the presence of a current disability. The weight of the post-service evidence does not establish the presence of the disabilities claimed by the Veteran. Regarding the presence of lower extremity radiculopathy, this disability has not been identified by any private or VA health care provider during the relevant claims period. In September 2012 and June 2016, the Veteran submitted medical reports from his private doctor to support his claims. While these reports document the Veteran's complaints of pain radiating to both legs with associated numbness, cramps, and paresthesia, the private doctor did not diagnose radiculopathy, i.e., neurological impairment associated with a lumbar spine disability. Instead, the private doctor associated the Veteran's symptoms with diabetic neuropathy. Service connection for diabetic neuropathy was denied in the Board's November 2018 final decision. Additionally, a VA examiner who physically examined the Veteran and reviewed the claims file in November 2019 concluded that there was no evidence of a peripheral nerve condition generally or lumbar radiculopathy specifically. Thus, the VA and private medical evidence weighs against a finding of bilateral lower extremity radiculopathy. The Board has considered the Veteran's lay statements that he experiences pain and numbness in his legs, but finds that lacks the expertise to specifically diagnose himself with lower extremity radiculopathy. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007). The Veteran is competent to describe the symptoms he experiences, but is not competent to attribute those symptoms to a specific diagnosis, particularly here, where the record contains evidence of another neurological disease manifesting the same symptoms. The Board therefore finds that the Veteran's lay statements are outweighed by the competent medical evidence establishing the Veteran does not have bilateral lower extremity radiculopathy. Turning to the claim for an acquired psychiatric disorder, the Board also finds that the evidence weighs against the presence of a current disability. In contrast to the claimed radiculopathy, the Veteran's private physician diagnosed generalized anxiety disorder and a major depressive disorder in the September 2012 and June 2016 medical evaluations. Although these diagnoses provide some medical evidence of a current mental health disorder, as noted by the Board in its November 2018 remand, the Veteran's private doctor is not shown to possess any specific medical training in psychiatry and the diagnoses are unaccompanied by any evidence of a psychiatric examination. The Board therefore finds that the September 2012 and June 2016 evaluations are of reduced probative value to the extent they identify the presence of an acquired psychiatric disorder. As the private medical evidence is of reduced probative value, the Board finds that it is clearly outweighed by the reports of August 2016 and November 2019 VA psychiatric examinations. Both examinations were conducted by psychiatrists, demonstrating training and expertise in the field of mental health disorders. The August 2016 examiner diagnosed a breathing related sleep disorder associated with the Veteran's sleep apnea and his non-use of a continuous positive airway pressure (CPAP) machine, but did not identify any actual mental health disorder. Similarly, the November 2019 VA examiner concluded that the Veteran did not have a psychiatric disorder and did not meet any of the criteria for a formal mental health disorder. Although the Veteran reported having difficulty sleeping, low energy, and forgetfulness, these complaints were related to his nonservice-connected sleep apnea. The November 2019 VA examiner also noted that the June 2016 evaluation from the Veteran's private physician did not include a mental health status examination or psychiatric diagnostic assessment. The Board finds that the August 2016 and November 2019 VA examiners conclusions are more probative than the diagnoses rendered by the Veteran's private doctor, particularly as they were rendered following a complete psychiatric evaluation. The medical evidence therefore clearly weighs against the presence of a current acquired psychiatric disorder. The Board has again considered the Veteran's statements, but notes that he has not provided any specific argument in support of his claim for a psychiatric disorder beyond stating in January 2013 that he had a "nervous breakdown" due to his physical limitations. The Board has considered this lay evidence, as well as the Veteran's reports of anxiety, depression, and memory problems. However, as noted above, the Veteran is not competent to diagnose himself with an anxiety or depressive disorder or determine that his symptoms are manifestations of an acquired psychiatric disorder. Such determinations require specialized medical training and knowledge and are not readily observable to a layperson. See Jandreau at 1377. The Board therefore finds that the Veteran's statements are outweighed by the competent medical evidence of record, particularly the opinions of the August 2016 and November 2019 VA examiners. Therefore, the record establishes that the Veteran does not have a bilateral radiculopathy of the lower extremities or an acquired psychiatric disorder. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the preponderance of the evidence is against the claims and they are denied. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a right wrist disability, to include right carpal tunnel syndrome. 5. Entitlement to service connection for a cervical spine disability. 6. Entitlement to service connection for a lumbar spine disability. The Veteran contends that service connection is warranted for disabilities of the right shoulder, right wrist, and cervical and lumbar spines. In statements dated throughout the claims period, the Veteran asserts that the claimed disabilities were incurred due to injuries associated with his active service as a heavy equipment operator/truck driver. The questions for the Board are whether the Veteran has the disabilities claimed and whether they began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran has the current disabilities claimed and the record contains lay evidence of an in-service injury, the preponderance of the evidence weighs against finding that the Veteran's right shoulder, right wrist, cervical spine, and lumbar spine disabilities began during service or are otherwise related to an in-service injury, event, or disease. The first element of service connectiona current disabilityis present. VA examinations in November 2019 include diagnoses of a right shoulder rotator cuff tear with residual loss of motion, a right wrist tendon laceration with surgical residuals, cervical spondylosis, and lumbar spondylosis with degenerative disc disease. Private treatment records and medical evaluations from the Veteran's private doctor also include findings of arthritis of the right wrist, right carpal tunnel syndrome, and chronic myositis of the cervical and lumbar muscles. The Veteran has also consistently complained of pain in all the relevant joints limiting his ability to walk, stand, and work. He is competent to describe the symptoms he experiences, and the Board finds that his reports are credible. Current disabilities are therefore demonstrated by the competent medical and lay evidence. The Board also finds that in-service injuries are present. The Veteran served with the Army National Guard of Puerto Rico and was ordered to ACDUTRA from September 1969 to March 1970. Following this period of active service, he was released back to reserve service where he continued until May 1980. During that 10 year period, the Veteran served several more periods of ACDUTRA. The timing of this ACDUTRA, occurring every summer for approximately two weeks, strongly indicates that it was the Veteran's annual two-week training. Thus, the Veteran had ACDUTRA from September 1969 to March 1970 and for two weeks each summer from 1970 to 1980. As noted above, the Veteran's STRs are not available for procurement and the Board cannot determine whether they include evidence of the claimed disabilities. In addition, the Veteran has not provided any specific statements describing the injuries he incurred during ACDUTRA. The Veteran has repeatedly stated that he served as a truck driver, but has not described the mechanism for the claimed injuries or their date of onset. Furthermore, he stated during the November 2019 VA spinal examination that he did not complain of any joint problems during service or seek any medical treatment. Despite the lack of detail surrounding the Veteran's contentions and the absence of STRs, the Board finds that the Veteran's statements are sufficient to establish in-service injuries. The Veteran has consistently reported that he served as a heavy machine operator/truck driver during his period of active service, and he is competent to report the duties he performed. Although he does not provide specifics as to the injuries he incurred, the Board finds that some injury, perhaps in the form of overuse, to the joints is consistent with operating heavy machinery on a regular basis. As the Board is under a heightened obligation to consider the benefit-of- the-doubt rule, the Board will resolve any doubt in the Veteran's favor and finds that service injuries are established based on his ACDUTRA service and truck driving duties. Although current disabilities and in-service injuries are present, the preponderance of the evidence weighs against a conclusion that the Veteran's disabilities began during service or are otherwise related to in-service injuries. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Rather than establishing an in-service etiology for the claimed disabilities, the evidence in this case links the Veteran's conditions to post-service injuries and other nonservice-related causes. Post-service treatment records clearly weigh against the claims for service connection. Records from various private physicians establish that the Veteran injured his right shoulder after lifting heavy objects in December 2004 and May 2005, decades after his last period of ACDUTRA. A May 2005 MRI confirmed the presence of a severe right rotator cuff tear and the Veteran underwent a surgical repair in August 2005. Similarly, the post-service record documents a work-related injury to the Veteran's right wrist in 1996. During the November 2019 VA examination of the wrist, he reported that incurred a right wrist tendon laceration while working at his civilian job in 1996 which also required surgical repair. A similar history was provided during a September 2006 Social Security Administration (SSA) examination, when the Veteran stated he required a surgical tendon repair on his right wrist due to trauma. With respect to the claimed cervical and lumbar spine disabilities, while post-service records do not document any specific injuries, they are negative for evidence of the conditions until April 2010, when a private X-ray demonstrated mild osteoarthritis and multilevel spondylosis of the lumbar spine. A cervical spine disability was not identified until a September 2012 evaluation from the Veteran's private physician, when cervical disc disease was diagnosed. The absence of any clinical evidence of the shoulder, wrist, and spinal disabilities until decades after service weighs the evidence against a finding that the Veteran's conditions were present in service, particularly as the Veteran has not specifically alleged the onset of the conditions during service or for many years thereafter. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The weight of the other competent evidence is also against a finding that the Veteran's claimed disabilities are related to his in-service injuries. The record contains conflicting medical opinions regarding the etiology of the disabilities on appeal, but the Board finds that the VA opinions weighing against service connection are more probative than the positive medical opinions provided by the Veteran's private physician. In November 2019 VA examination reports, several VA examiners provided medical opinions against service connectionfinding that the Veteran's right shoulder, cervical, and lumbar disabilities were not etiologically related to any incident of active service. The examiner of the right shoulder found that the Veteran's current disability was clearly the result of a post-service injury based on review of the claims file and the Veteran's own reported history. A similar rationale was used for the opinion pertaining to the cervical spine disability; the Veteran and the contents of the available records both date the onset of the condition after active service, with no reports of complaints or treatment during service. Regarding the Veteran's lumbar spine disability, the November 2019 VA examiner concluded that the degenerative disc diseases and spondylosis were of atraumatic etiology and represented normal and expected changes associated with the aging process. This finding was based on the history and presentation of the condition, as well as review of the radiographic evidence, including X-rays dated in April 2010, November 2010, and a November 2012 lumbar MRI. The Board finds these medical opinions are probative as they are based on an accurate medical history and include explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In contrast, the Board finds that the medical opinions provided by the Veteran's private physician in September 2012 and June 2016 are not probative. The private physician found that the Veteran's disabilities were all due to military service; however, these statements were unaccompanied by any rationale. The private doctor merely provided a generalized statement that the Veteran's disabilities were "secondary to military service performance." No mention was made of the Veteran's post-service injuries or how his disabilities are related to ACDUTRA. The lack of an accompanying rationale renders the September 2012 and June 2016 private medical opinions of no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the November 2019 VA medical opinions and finds that they establish the Veteran's disabilities are not related to any period of active military service. With respect to the Veteran's claimed right wrist condition, although the VA examiner did not specifically address the question of a link with service, the November 2019 VA examination report includes the Veteran's own statements that his current disability was due to a post-service work injury in 1996, more than 15 years after his separation from reserve service. Additionally, the examiner noted that the Veteran denied experiencing any symptoms of numbness, tingling in the hand, or decreased handgrip strength as would accompany a diagnosis of carpal tunnel syndrome. As the post-service medical evidence and the Veteran himself clearly link the right wrist disability to post-service injuries, a VA opinion would not aid in substantiating the claim for a right wrist disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board has also considered the Veteran's lay statements. As noted above, the Veteran contends that service connection is warranted in this case as the claimed disabilities are related to his period of active service. Although the Veteran is competent to describe his symptoms, he is not competent to provide an opinion regarding the etiology of his disabilities. Determining the etiology of his right shoulder, right wrist, and spinal conditions is a medically complex question, requiring knowledge of various anatomical relationships and interpretation of diagnostic medical testing, such as X-rays and MRIs. Therefore, it is outside the competence of the Veteran as the record does not include any evidence he possesses the medical training or credentials to make such determinations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. Furthermore, the Board notes that the Veteran has not reported a history of continuing symptoms since service. See 38 C.F.R. § 3.303(a) and (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The history he has provided is to the effect that he served as a truck driver during various periods of ACDUTRA, incurred unspecified injuries, and these injuries led to the development of joint disabilities years later. The Veteran has not reported a history of continuous symptoms since service and his lay contentions regarding service connection are outweighed by the competent medical evidence of record. In sum, the post-service medical evidence of record shows that the earliest evidence of the Veteran's claimed disabilities was many years after any period of active military service. The competent evidence also weighs against a nexus between the Veteran's right shoulder, right wrist, cervical, and lumbar disabilities and service. The Board has carefully considered the benefit-of-the-doubt rule, but as the preponderance of the evidence is against the claims, it is not for application. Accordingly, the claims are denied. TDIU 7. Entitlement to TDIU. A total rating may be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As the Veteran currently has no service-connected disabilities, entitlement to TDIU is precluded as a matter of law. K. Conner Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.