Citation Nr: 21065962 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-33 751 DATE: October 28, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability was not manifested during service or within one year of service; the preponderance of the evidence is against a finding that the Veteran's cervical spine disability is etiologically related to an event, injury, or disease in service. 2. The Veteran's right shoulder disability was not manifested during service or within one year of service; the preponderance of the evidence is against a finding that the Veteran's right shoulder disability is etiologically related to an event, injury, or disease in service. 3. The Veteran's left shoulder disability was not manifested during service or within one year of service; the preponderance of the evidence is against a finding that the Veteran's left shoulder disability is etiologically related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a VA Regional Office (RO). By way of background, this matter has previously been remanded by the Board in April 2018 and most recently in June 2021 for additional development. The Board's June 2021 remand directed the RO to obtain new VA medical opinions concerning the Veteran's pending claims seeking service connection for bilateral shoulder and neck conditions. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). SERVICE CONNECTION A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disease diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a cervical spine disability is denied. 2. Entitlement to service connection for a right shoulder disability is denied. 3. Entitlement to service connection for a left shoulder disability is denied. The Veteran has repeatedly contended that he injured his cervical spine (neck) and both his shoulders after a fall during service. Specifically, in June 1968, the Veteran reports hitting his head after slipping and falling into a drainage ditch. The fall knocked him out, and he received stitches. Consistent with this, the Veteran's service treatment records (STRs) show that he "came in for [a] dressing change" on June 17,1968. Three days later, a treatment record shows "removal of sutures." In support of his claim, he also submitted a statement from a fellow servicemember who witnessed the fall. Other than the reports noted above, the Veteran's service treatment and personnel records contain no complaints, symptoms, record, diagnosis, or any other report of a neck or shoulder injury. The Veteran was found sound upon entry of service and the Veteran's separation examination contained no reports of injury or pain to the neck or shoulders. After service, treatment records indicate the Veteran first received treatment for his neck and shoulders in February 1995, nearly three decades after service. Chiropractor, Dr. J.R., indicated he treated the Veteran for shoulder and neck pain/stiffness with date of onset reported as 2005. Diagnostic testing in October 2006 showed mild degenerative arthritis of the cervical spine. In March 2014, diagnostic testing of the cervical spine showed moderate degenerative arthritis The Veteran was afforded a VA shoulder examination in July 2013, at which time the Veteran's diagnosis of bilateral shoulder impingement syndrome was confirmed with date of onset noted as 2005 as per Dr. J.R. The examiner opined that the Veteran's bilateral shoulder disability was less likely than not caused by or a result of military service. The examiner noted the Veteran's service treatment records were silent for a shoulder disability. The examiner also performed a range of motion test noting limitations as well as pain experienced by the Veteran. During the examination, the examiner considered statements made by the Veteran of onset of pain during service and it was further noted, there was no chronicity nor continuity of care from 1968 through 1995. Lastly the examiner opined that the Veteran's current shoulder conditions "are more than 50 [percent] attributed to occupational repetitive lifting, pushing, and moving heavy materials in his civilian career. In March 2021, the Veteran was afforded a VA cervical spine examination and medical opinion. At which time, the Veteran's diagnosis of cervical spine degenerative joint disease was confirmed. The examiner noted the Veteran's service treatment records were silent for a shoulder disability. The examiner also performed a range of motion test noting limitations as well as pain experienced by the Veteran. During the examination, the examiner considered statements made by the Veteran of onset of pain during service and it was further noted, there was no chronicity nor continuity of care from 1968 through 1995. Ultimately, the examiner opined that the Veteran's bilateral shoulder disability was less likely than not caused by or a result of the fall the Veteran described during service. The examiner explained along with noting once more the lack of continuous ongoing medical treatment since discharge, that "cervical spine degenerative joint disease is secondary to joint aging and chronic overuse of the neck over [a] duration of many years". Subsequent to the Board's June 2021 remand, the Veteran was provided additional VA medical opinions for his claimed conditions later that same month. The June 2021 examiner opined that the Veteran's cervical spine and bilateral shoulder disabilities were less likely than not incurred in or caused by service. The examiner explained that there was no objective evidence of cervical spine or bilateral shoulder treatment during service or within one year of separation. It was further noted that the Veteran's separation examination was silent and that the first documented treatment for either disability occurred in 1995, over 25 years post service. At the outset, the Board notes that the VA examinations of record, taken in conjunction with records of medical treatment, are an adequate basis upon which to determine the nature and etiology of the Veteran's bilateral shoulder and cervical spine disabilities. Although earlier VA examinations from July 2013 and March 2021 were deemed inadequate for adjudicative purposes these examinations and opinions are still held to be probative for some information. See Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). In addition, the RO obtained new VA medical opinions which considered the Veteran's contention of a fall during service and ultimately confirmed the earlier findings of a negative nexus. Given the totality of the information, including the Veteran's own descriptions of his symptoms and limitations, the Board finds the evidence of record to be adequate the Veteran's service connection claims. An adequate medical opinion must be based upon a consideration of the Veteran's prior medical history and must describe the Veteran's condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In determining whether the record reflects that the Veteran's current cervical spine and bilateral shoulder disabilities are related to his service, the Board acknowledges the Veteran's belief that there is such a causal connection as well as his own description of in-service incurrence. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469(1994). The Veteran is certainly competent to describe the circumstances of his military duties, the pain he felt during service, and the pain he felt since service. Competency and credibility, however, are two distinct inquiries. Whereas the former is a threshold legal concept that pertains to whether a particular piece of proffered evidence can even be considered by the factfinder, the latter pertains to the credibility and weight of such evidence as assigned by the trier of fact. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (distinguishing between competence and weight and credibility and explaining that the "former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If evidence is not competent, it cannot be considered as evidence by the factfinder. Id. However, the mere fact that evidence is deemed competent does not mean that it must be found persuasive of a particular fact. See Id. If evidence is found to be competent, it is for the Board to determine what, if any, probative value to assign to that evidence. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (it is the responsibility of the Board to assess the probative weight of the evidence). Here, although the Veteran is certainly competent to comment on the events in service, the Board finds the Veteran's contentions regarding in-service incurrence and continuity of pain since service not credible given the lack of continuity of complaints or medical treatment during service or for decades after service. Indeed, the Board observes the Veteran alleges he experienced pain in his neck and shoulders after a fall in service. However, other than the fall itself, these assertions cannot be verified. In fact, the Veteran's separation examination contains no reports of the presence of pain or injury to his shoulder or neck. The only documented report of symptoms and treatment occurs over 25 years after separation. In assessing the credibility of evidence, the Board may consider any number of factors, to include conflicting statements or evidence, and the potential bias of the declarant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341, 345 (1999). The lack of contemporaneous evidence is also relevant; however, it may not generally serve as the sole basis for discrediting lay statements or testimony. Buchanan, 451 F.3d at 1337. Here, the Board emphasizes the Veteran's credibility is not being discounted solely because of a lack of contemporaneous evidence. Rather, the Veteran himself admits he never sought continued treatment after separation from service even though he claims the pain in his neck and shoulders was continuous. The idea that the Veteran would not complain of an acute or an ongoing issue for nearly three decades is incredible. The Veteran has not identified any instance of reporting this pain upon leaving military service until 1995 at which time he sought treatment from a chiropractor. Cf. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (a lack of notation where such notation would normally be expected may be relied on as evidence against the existence of the fact or facts that ordinarily would have been noted). The Board notes, the Veteran has testified to not reporting any injury or symptoms of neck or shoulder injuries at separation because he did not want to delay separation. See August 2019 Decision Review Officer Hearing P. 12. Nonetheless, the Veteran denied any neck or shoulder pain and noted his health was "good" at the time of separation in spite of his reports of being in chronic pain since service and did not seek treatment for either condition until 1995. See November 1968 Separation Examination. Thus, the Board does not find the Veteran's statements of continuity of symptoms credible as they are in contradiction with other evidence of record. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium,78 F.3d 604 (Fed. Cir. 1996) (when determining whether lay evidence is satisfactory, the Board may properly consider internal consistency, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and demeanor of witness (if hearing held)). Therefore, the Board finds the VA examinations with subsequent medical opinions to be significantly more credible and persuasive than statements made to VA for purposes of seeking compensation. Veteran's inconsistent and contradictory statements concerning his pain coupled with an over twenty-five-year gap between separation and first documented treatment, lead the Board to conclude there is a preponderance of evidence against finding continuity of symptomology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility). Further, the Veteran is not considered competent to medically attribute his current cervical spine and bilateral shoulder disabilities to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements do not constitute competent evidence that may be probative in showing an etiological relationship between the Veteran's in-service activities and the current cervical spine and shoulder disabilities. To determine whether such a relationship exists, the Board turns to the competent medical evidence of record. The United States Court of Appeals for Veterans Claims has stated that the probative value of a medical opinion is based on the expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). With respect to a nexus between the current neck and bilateral shoulder conditions and in-service occurrence, the Board assigns more probative weight to the VA examinations of record, which all opined in the negative after thorough review of the Veteran's file and consideration of the Veteran's report of an in-service fall. As such, the Board finds no causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). The Board has also considered whether the Veteran is entitled to service connection for cervical spine and bilateral shoulder disabilities as "chronic diseases." See 38 C.F.R. § 3.303 (b). The Veteran's bilateral shoulder impingement syndrome is not included in the list of "chronic" diseases under 38 C.F.R. § 3.309 (a). However, the Veteran's cervical spine degenerative joint disease is a form of arthritis which is listed as a "chronic" disease under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with bilateral shoulder impingement syndrome and cervical spine degenerative joint disease at the earliest, twenty-seven years after his separation from active service. Thus, the record does not show that the Veteran's disabilities manifested to a compensable degree within one year of separation nor is his bilateral shoulder impingement syndrome included in the list of "chronic" diseases. While the Veteran has reported onset of a neck and shoulder disabilities in and since service, the prolonged period from separation from service until 1995, without complaints and/or treatments for his alleged disabilities is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In the absence of credible evidence of bilateral shoulder impingement syndrome and/or cervical spine degenerative joint disease within one year after separation or credible evidence of continuity of symptomatology, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.