Citation Nr: 21070998 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-24 600 DATE: November 29, 2021 ORDER Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a left or right shoulder disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that a cervical spine disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2004 to September 2005. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2018. A transcript of that hearing has been associated with the claims file. These issues, along with entitlement to service connection for a thoracic spine disorder and entitlement to service connection for a low back disorder, were remanded by the Board in July 2019 and November 2020 for further development. As a result of the development, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for a spine disorder and right lower extremity radiculopathy in a September 2021 rating decision. Therefore, this is a full grant of the benefits sought for entitlement to service connection for a thoracic spine disorder and a low back disorder and the issues are no longer on appeal. The above issues are returned to the Board for appellate review. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. See Walker, supra; 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a right shoulder disorder is denied. 2. Entitlement to service connection for a left shoulder disorder is denied. The Veteran asserts that he is entitled to service connection for a bilateral shoulder disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's bilateral shoulder disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. In a June 2004 service treatment record (STR), the Veteran complained of shoulder pain. The medical provider observed the Veteran to have tendonitis. In a December 2004 STR, the Veteran is noted to have a history of bilateral shoulder tendonitis that was diagnosed four months prior in basic training. The medical provider noted that in basic training, the Veteran was given Motrin and profiled for two weeks. The medical provider stated that the symptoms initially resolved after one month and have recurred within the last month. The Veteran described the pain as in the bilateral shoulders that shoots down the bilateral arms. The Veteran also stated he has neck pain. He denied experiencing trauma with the exception of possibly misplacing his rucksack on his back. On examination, the medical provider observed the Veteran to have tenderness on palpation along his neck, intrascapular area, and upper back with tenderness to palpation. The medical provider assessed the Veteran to bilateral shoulder tendonitis. In a January 2005 STR, the Veteran sought treatment for bilateral shoulder pain to renew his physical profile. In January 2005, the Veteran received a physical profile for a three-month duration limiting the Veteran's participation in running, pushups, repetitive overhead lifting, and lifting over 10 pounds. In a February 2005 STR, the Veteran complained of right shoulder pain for the prior seven months. Imaging reveled negative results in the right shoulder. A May 2005 STR shows the Veteran's problems to include shoulder tendonitis. On the July 2005 STR report of medical history, the Veteran indicated he experiences painful shoulders, elbows, or wrist. On explanation, the Veteran stated he has tendonitis in the bilateral shoulders. On examination, the medical provider stated the Veteran experiences intermittent soreness. The medical provider stated the Veteran has not experienced trauma or surgery in the bilateral shoulders On the August 2005 STR separation examination, the Veteran's bilateral shoulders are found to be abnormal with a finding of crepitus and negative for subluxation. On the December 2012 VA orthopedic examination, the medical provider assessed the Veteran to have normal bilateral shoulders. The Veteran stated that he experienced bilateral shoulder pain in service when performing exercises. He stated that he did not experience trauma. He stated he was diagnosed with tendonitis in the bilateral shoulders and was provided with injections. He stated that since this time he has had no physical therapy. The Veteran stated that he experiences shoulder pain daily that is exacerbated with changes in the weather. The December 2012 VA examiner opined that the Veteran's bilateral shoulder disorder is less likely than not caused by service. The examiner reasoned that the Veteran did have some shoulder discomfort during service and sought treatment in January 2005, February 2005, July 2005, and August 2005 and was diagnosed with bursitis and tendonitis. The examiner stated that these injures were temporary and are not permanent. The examiner stated that these disorders are aggravated with repetitive motion and/or certain activities, but these disorders do not cause permanent injures. At the November 2018 Board hearing, the Veteran testified that he injured his bilateral shoulders during service when walking a ruck march with a 70-plus pound rucksack. Board Hearing Transcript (T.) at 3. The Veteran stated he learned his rucksack was defective and not properly mounted on the frame. T. at 4. The Veteran stated that he sought treatment in-service for his shoulders during basic training around June 2004. T. at 4-5. The Veteran stated he was treated with Ibuprofen. T. at 6. The Veteran stated that he reported again for treatment two weeks later and was provided imaging of the shoulders. Id. The Veteran testified that he was treated several times during service for his bilateral shoulders. T. at 8. The Veteran stated that he was later diagnosed with tendonitis during service. T. at 8-9. He stated that he was diagnosed with a pinched nerve in one shoulder and tendonitis in the other. T. at 9. The Veteran stated he does not receive treatment for his bilateral shoulders. T. at 10. The Veteran testified that he experiences painful pins and needles int the bilateral shoulders. T. at 12-13. On the October 2019 VA shoulder examination, the examiner indicated the Veteran has a diagnosis of bilateral shoulder strain. The Veteran stated he has experienced right shoulder pain and since 2004. He stated that he has been treated with at least two cortisone shots. The VA examiner opined that the Veteran's bilateral shoulder disorder is less likely than not caused by service. The examiner reasoned that the Veteran did experience shoulder discomfort during service, but there is no history of trauma or injuries outside of STR treatment in January 2005, February 2005, July 2005, and August 2005. The examiner noted the Veteran was diagnosed with bursitis and tendonitis. The examiner stated that bursitis and tendonitis are temporary injuries. The examiner stated that these disorders are aggravated with repetitive motion and/or certain activities, but do not cause permanent injuries. On the May 2021 VA shoulder examination, the examiner indicated the Veteran has a diagnosis of bilateral shoulder strain. The Veteran stated that he began experiencing bilateral shoulder pain in 2005 that has since worsened. The Veteran stated that he believed the pain is due to repetitive use of the arms while performing push-ups. The Veteran stated that he had normal right shoulder imaging in February 2005. The Veteran stated that for the past 15 years he has not seen a medical doctor for shoulder pain because he only recently received medical insurance last year. The Veteran stated that his bilateral shoulder pain is worse since its onset because he has limited mobility and his bilateral hands go numb. The VA examiner opined that the Veteran's bilateral shoulder disorder is less likely than not caused by service. The examiner reasoned that the Veteran's August 2005 separation examination demonstrated crepitus in the shoulders, which can indicate osteoarthritis, labral tears, and benign causes. The examiner stated that the Veteran's bilateral shoulder imaging was normal in December 2012. The examiner noted that the Veteran has not had medical treatment for shoulder pain in the past 15 years, so it is unlikely that the Veteran's current bilateral shoulder disorder is due to crepitus that was demonstrated on the August 2005 separation examination. Based on the foregoing, the Board finds that the weight of the evidence does not establish that the Veteran's bilateral shoulder disorder was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for a bilateral shoulder disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from a bilateral shoulder disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran's bilateral shoulder disorder is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating his bilateral shoulder disorder to service. The only competent evidence in the record that addresses this question is the May 2021 VA medical opinion, which stated that the Veteran's bilateral shoulder disorder was not related to his service. As there is no other competent and probative evidence to the contrary, and the May 2021 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran's own statements relating his bilateral shoulder disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether a bilateral shoulder strain, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, a strain is a disease of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral shoulder disorder. Accordingly, it must be denied. 3. Entitlement to service connection for a cervical spine disorder is denied. The Veteran asserts that he is entitled to service connection for a cervical spine disorder on a direct basis. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's cervical spine disorder did not manifest during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. In a December 2004 STR, the Veteran's imaging showed the Veteran to have a normal cervical spine. In a January 2005 STR, the Veteran sought treatment for neck pain to renew his physical profile. In January 2005, the Veteran received a physical profile for a three-month duration excluding the Veteran's participation in running, pushups, repetitive overhead lifting, and lifting over 10 pounds. A May 2005 STR shows the Veteran's problems to include neck symptoms. On the August 2005 STR separation examination, the medical provider indicated the Veteran's spine is abnormal, but the medical provider made no findings related to the cervical spine. On the December 2012 VA orthopedic examination, the examiner indicated the Veteran's cervical spine is normal. The examiner indicated the cervical spine imaging is normal. The Veteran stated that he experienced neck pain during service when performing exercise. He stated there was no trauma. The Veteran stated that he experiences neck pain daily that is exacerbated with standing, lifting, and bending. The examiner opined that the Veteran's cervical spine complaints are not related to service because the Veteran's cervical spine is normal. At the November 2018 Board hearing, the Veteran testified that he injured his neck in the same manner that he injured his bilateral shoulders by carrying the rucksack that may have been defective. T. at 13. He stated that after the field training exercise, his back was bruised from the ruck sack. T. at 14. He stated he sought treatment for the neck when he sought treatment for the bilateral shoulders. T. at 15. He stated that the medical provider determined that his shoulder pain and neck pain were related. Id. The Veteran stated that imaging showed his neck and back to have multiple hairline distress fractures in the spine. T. at 17. The Veteran stated he was told to have physical rehabilitation. T. at 18. The Veteran testified that he currently receives treatment for his neck disorder. Id. On the October 2019 VA neck examination, the examiner indicated the Veteran has a diagnosis of cervical strain and intervertebral disc syndrome (IVDS). The Veteran stated that his neck pain began in 2004 during service. He stated that he injured his neck during basic training during a march with a rucksack. He stated that the pain has not improved since 2004. The examiner opined that the Veteran's cervical spine disorder is less likely than not caused by service. The examiner reasoned that the Veteran was treated in service in December 2004, January 2005, and April 2005 for the cervical, thoracic, and lumbar spine; however, the examiner found that the Veteran's cervical spine disorder is not related to military service based on the fact that he had a normal cervical spine examination on the October 2019 VA examination. The examiner stated that the Veteran's cervical spine is not related to military service based on the fact that the Veteran has a normal cervical spine examination. The examiner stated that any injures in service were minor soft tissue injures which resolved and could not cause any chronic conditions. On the May 2021 VA neck examination, the examiner indicated the Veteran has diagnoses of cervical strain and IVDS. The Veteran stated he developed gradual neck pain in 2004 due to compensating for his shoulder and back pain. He stated he was medically evaluated for his neck pain and was informed that he had a neck strain. He stated he treated his neck pain with over-the-counter medication. He stated that he continues to experience neck pain. He stated that he did not seek treatment for the past 15 years because he did not have insurance. The examiner opined that the Veteran's cervical spine disorder is less likely than not caused by service. The examiner reasoned that the Veteran has a diagnosis of cervical strain and IVDS due to limited range of motion, tenderness to the cervical spine, and decreased sensation. The examiner stated that a medical note from December 2004 stated that a cervical spine imaging was ordered because the Veteran has neck pain radiating down both arms. However, the examiner noted the Veteran's August 2005 exit examination did not demonstrate any abnormal findings of the cervical spine. The examiner stated there are no medical records that discuss evaluation or treatment for neck pain while the Veteran served or after separation from service. Based on the foregoing, the Board finds that the weight of the evidence does not support a finding that the Veteran's cervical spine disorder was manifested in service or to a compensable degree in the first year following his separation from service. Consequently, service connection for a cervical spine disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from a cervical spine disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no competent and probative evidence to establish that the Veteran's cervical spine disorder is otherwise related to service. The Veteran's post-service treatment records are silent for an opinion relating his cervical spine disorder to service. The only competent evidence in the record that addresses this question is the May 2021 VA medical opinion, which stated that the Veteran's cervical spine disorder was not related to his service. As there is no other evidence to the contrary, and the May 2021 VA medical opinion was based on a full review of the record as well as an interview and examination of the Veteran, the Board finds it persuasive. Further, the Veteran's own statements relating his cervical spine disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether a strain and IVDS, in the absence of credible evidence of continuity, as here, are related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, a strain and IVDS are diseases of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a cervical spine disorder. Accordingly, it must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.