Citation Nr: 21072399 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-25 267 DATE: December 3, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for left upper extremity neuropathy is denied. Entitlement to service connection for left upper extremity radiculopathy is denied. Entitlement to service connection for a left shoulder disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the current cervical spine diagnosis, including degenerative disc disease, cervical spondylosis, and/or disc herniation at C6-C7, began during active service or within one year of separation from service, or is otherwise related to an in-service injury or disease 2. The preponderance of the evidence is against finding that any current left upper extremity radiculopathy and/or neuropathy is secondary to any service-connected condition, or that it began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the current left shoulder diagnosis, including rotator cuff tendonitis and bursitis, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left upper extremity neuropathy are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left upper extremity radiculopathy are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from October 1998 to July 1999, February 2003 to June 2003 and from June 11, 2005 to June 24, 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2018, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. The issues of entitlement to service connection for a nervous condition or psychiatric disorder also claimed as sleep disorder, and entitlement to service connection for erectile dysfunction was also remanded by the Board in December 2018. However, in a January 2021 rating decision, the Veteran was granted entitlement to service connection for his depressive disorder and erectile dysfunction. That decision constitutes a full grant of the benefit sought on appeal and the Board has limited its consideration accordingly. Service Connection Service Connection Cervical Spine, Left Upper Extremity, and Left Shoulder Disabilities The Veteran asserts that his claimed cervical spine, left upper extremity, and left shoulder disabilities were caused or incurred during active service. He specifically claims that his cervical spine condition was caused by the same incident led to his service-connected lumbar spine disability. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). Certain disease, including arthritis, are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. Here, service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of a cervical condition, left shoulder disability, or symptoms that could later be associated with either a cervical condition or left shoulder disability. Post-service evidence of record shows that the Veteran was diagnosed with degenerative disc disease of the cervical spine in 2015, cervical spondylosis in 2015, disc herniation at C6-C7 in 2016, left upper extremity radiculopathy in 2016, left shoulder impingement syndrome in 2018, left should rotator cuff tendonitis in 2018, and left shoulder bursitis in April 2020. At a January 2021 VA examination, the examiner opined that the Veteran's cervical spine conditions are less likely than not proximately due to or the result of the Veteran's service-connected conditions. As rationale, the examiner noted that the Veteran's cervical spine conditions had different pathophysiological or biomechanical processes than his service-connected lumbar disc disease, gastroesophageal reflux disease (GERD), left lower extremity radiculopathy, and tinnitus, and are unrelated to each other. Additionally, the examiner stated that medical literature did not show that any of the Veteran's service-connected disabilities aggravated any cervical spine condition. In a February 2021 addendum, the same examiner opined that the Veteran's cervical spine conditions are less likely than not incurred in or caused by active service, to include a 2005 back injury. As rationale, the examiner noted that the Veteran's medical treatment records were silent for a cervical condition during service or within one year of separation, and there is an approximately 10-year gap between the Veteran's in-service back injury and the onset of his cervical conditions. At a June 2021 VA examination, the examiner opined that the Veteran's left shoulder impingement syndrome and rotator cuff tendonitis were less likely than not incurred in or caused by active service. As rationale, the examiner noted that the Veteran's medical records were silent for chronicity of care or treatment that would support the contention that left shoulder disability dates back to active military service. The examiner also opined that the Veteran's left shoulder disability is less likely than not proximately due to or the result of the Veteran's service-connected conditions or his claimed cervical spine disability. As rationale, the examiner noted that the Veteran's left shoulder disability has different pathophysiological or biomechanical processes than his service-connected lumbar disc disease, GERD, left lower extremity radiculopathy, tinnitus, and cervical spine conditions and are unrelated to each other. Additionally, the examiner stated there is no evidence in the medical literature that shows that the Veteran's service-connected disabilities aggravated his claimed left shoulder disability. The Board finds that the January 2021, February 2021, and June 2021 VA medical examinations are adequate because the examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran submitted an evaluation by a private physician, Dr. J.E., dated in June 2021. Dr. J.E. provided findings on functional limitations of the cervical spine, left upper extremity, and left shoulder. He also opined generally that the Veteran's "medical conditions are more likely than not (a 50% or greater probability) that his diagnosis mentioned above began during military service." It is unclear to the Board whether Dr. J.E. was referencing the claimed cervical spine, left upper extremity, and left shoulder disabilities, or if he was referencing a separate claim for a bilateral foot disability. Even assuming that Dr. J.E. was referring to the claimed cervical spine, left upper extremity, and/or left shoulder disabilities, the Board finds that there is little probative value in his opinion with regard to establishing service connection for the cervical spine, left upper extremity, and left shoulder. The evaluation contains findings of impairments, but no specific diagnoses. Moreover, there is no evidence of any imaging reports or nerve studies, and there is no explanation or rationale provided for the conclusion the doctor reached that the relevant conditions were related to service. Rather, Dr. J.E.'s opinions appear to be based on the Veteran's verbal reports. See Black v. Brown, 5 Vet. App. 177, 180 (1993) (finding medical opinions inadequate when they are not supported by medical evidence); Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). While laypersons are competent to report observable symptoms of his cervical spine and left shoulder conditions, he is not competent to provide an opinion linking a disability to active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the Veteran's statements probative with regard to establishing his current symptoms, but finds little probative value with regard to establishing service connection. In any case, their probative value is outweighed by the probative value assigned to an evaluation conducted by a person who has medical expertise and training. Further, there is no indication from the record that degenerative disc disease of the cervical spine, cervical spondylosis, left upper extremity radiculopathy, left shoulder impingement syndrome, left should rotator cuff tendonitis, or left shoulder bursitis were manifest to a compensable degree within a year of the Veteran's separation from active service. As such, presumptive service connection for a chronic disability is not warranted in this case. 38 C.F.R. § 3.309(a). (continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for cervical spine disability, left upper extremity neuropathy, left upper extremity radiculopathy, and a left shoulder disability is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.