Citation Nr: 21076040 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-21 308 DATE: December 22, 2021 ORDER Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. Service connection for a cervical spine disability is denied. Service connection for a thoracic spine disability is denied. FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current diagnosis of a left shoulder disability and the record does not contain a recent diagnosis of disability prior to the filing of the claim. 2. The Veteran's right shoulder disability is not caused by, incurred in, or otherwise due to his active-duty service. 3. The Veteran's cervical spine disability is congenital, and was not aggravated beyond its natural progression by his active-duty service, nor did he incur an in-service superimposed injury to his neck. 4. The Veteran's upper back pain is due to his non-service-connected congenital cervical spine condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 3.307, 3.309. 4. The criteria for service connection for a thoracic spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1997 to August 2001. Afterwards, he had service in the United States Army Reserves and the United States Navy Reserves. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In March 2021 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the March 2021 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. The Board notes that some of the Veteran's service treatment records (STRs) are unavailable. Past efforts to locate the records have been unable to do so, and all avenues to obtain them have been exhausted. In light of the AOJ's numerous efforts to obtain the Veteran's STRs, the Board find's that the AOJ's efforts to obtain the missing records satisfies VA's duty to assist. In cases where medical records are unavailable, VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule, O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This is not to say that there is a heightened benefit-of-the-doubt rule. Rather VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing the claim, and to explain its decision. See Ussery v. Brown, 8 Vet. App. 64 (1995). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement of a current disability is satisfied when a veteran has a disability at the time he files a service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation for VA compensation purposes. See 38 C.F.R. § 3.303 (c), 4.9; see also O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). When there is a congenital defect, the presumption of soundness is automatically rebutted, and the congenital defect is therefore considered to have preexisted service. Id. Congenital defects, however, can be subject to superimposed disease or injury and if, during an individual's military service, superimposed disease or injury does occur, service-connection may be warranted for the resultant disability. See VAOPGCPREC 82-90 (July 18, 1990). The Veteran bears the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Until the Veteran shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left shoulder The Veteran claims that he has a left shoulder disability that is caused by, or otherwise due to, his active-duty service. Despite alleging that he has a left shoulder disability, the Veteran's medical records show no diagnosed condition or disease affecting his left shoulder. Medical records from May 2016 show only complaints of right shoulder pain. An August 2021 VA examination found, based on medical imaging, that there is nothing wrong with the Veteran's left shoulder. Thus, the record fails to demonstrate that the Veteran had any left shoulder disability during the pendency of his claim. Furthermore, the Board finds that the record does not contain a recent diagnosis of disability prior to his filing of the claim. See McClain, supra; Romanowsky, supra. In this regard, despite the Veteran's assertions, there are nevertheless no competent diagnoses related to a disorder of the Veteran's left shoulder during the appeal period. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; Brammer, supra. Thus, where, as here, the collective lay and medical evidence, or lack thereof, indicates that, fundamentally, the Veteran does not have the current disability due to disease or injury for which service connection can be granted, there can be no valid claim for service connection. See Brammer, supra; see also Shedden, supra; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The claim is denied. Right shoulder The Veteran claims that his right shoulder disability is caused by, or otherwise due to, his active-duty service. The Veteran's medical records show that he has been diagnosed with an osteophyte in his right shoulder. Therefore, the first Shedden element necessary to establish service connection has been met. According to the Veteran, he hurt his shoulder due to the "ruck marches" he was part of in the Army. See Notice of Disagreement, December 2015. Furthermore, the portions of the STRs that are available show that the Veteran did complain of shoulder pain and "popping" during his service. Therefore, the Board finds that the second Shedden element necessary to establish service connection has been met. What is left for the Board to determine is whether his current right shoulder disability is due to his active-duty service. In August 2021 the Veteran was seen for a VA examination to determine the etiology of his right shoulder disability. As noted above, the examiner diagnosed the Veteran with an osteophyte, which was described as "incidental" and "tiny." Based on a review of the Veteran's medical history, post-service medical records (to include imaging of the shoulder), and a "review of medical literature," the examiner concluded that the Veteran's shoulder was "normal." The "incidental tiny osteophyte" was a new development since the last x-rays in 2015 were taken. Finally, the examiner addressed the fact that the Veteran's congenital cervical rib abnormality was the cause of his shoulder pain. A review of medical literature showed that the condition would lead "to gradual dropping of the shoulder girdle" which "may lead to it causing ... disturbance in the upper limb." Symptoms of the condition include "pain" or "weakness" in the shoulder. As such, the examiner concluded that it was less likely than not that the Veteran had "a shoulder condition that had its onset during or is otherwise etiologically related to his active-duty military service." The Board accords great probative weight to the opinion proffered by the August 2021VA examiner, which found no nexus between the Veteran's right shoulder and service. The examiner provided a well-supported rationale, relying on and citing to the records reviewed. Moreover, she offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Notably, there is no contrary medical opinion of record. To the extent that the Veteran himself asserts that he has a shoulder disability that is related to service, the Board does not question the Veteran's sincerity in his belief that there is a correlation. While he is certainly competent to provide information regarding symptoms and a medical history, there is no indication that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau, supra (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, the Board accords his statements regarding the nature and etiology of his right shoulder no probative weight. Even if the Veteran was competent to provide an etiological opinion, which laypersons are able to do in some instances, the Board finds that the reasoned conclusion of the VA examiner is more probative than the Veteran's assertions. The medical professional has the training, experience, and expertise that the Veteran is not shown to have. As such, his opinion is outweighed by the opinion provided by the VA examiner. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. Cervical and thoracic spine The Veteran contends that his spine disabilities are caused by, or otherwise due to, his active-duty military service. As noted above, the Veteran's neck condition has been diagnosed as cervical rib syndrome, which is a congenital condition. By definition, congenital conditions are present from birth, and therefore preexist any active-duty military service. In such instances, service connection may only be granted if the congenital condition was aggravated beyond the natural progression of the condition by military service, or if the Veteran experienced a superimposed injury. However, service connection would only be given to the superimposed injury, and not the congenital disability. With regard to his spine, while x-rays from August 2021 show a "normal thoracic spine," the Veteran still reports experiencing "upper back pain." The Veteran's available STRs show no complaints of back pain, nor do they show any instances of accidents or injuries to his back. In fact, the Veteran repeatedly denied back issues while serving in the Reserves, which he did after his active-duty service. In August 2007 he denied "recurrent back pain or any back problems." In October 2007 he denied any "painful joints," and in December 2009 and February 2011 he again denied any "recurrent back pain or any back problems." In August 2021 the Veteran was seen by a VA examiner to determine the etiology of his neck and back pain. The examiner concluded that the Veteran's spinal conditions are "less likely than not ... incurred in or caused by" his military service. The Veteran's cervical rib syndrome is a condition that "became symptomatic with increasing age." This is evidenced by the fact that the Veteran's medical treatment records show no evidence of in-service neck pain, and only progressively worsened as the Veteran got older. Regarding the Veteran's thoracic spine, the examiner noted that the Veteran "does not have a thoracic spine condition," and his back is "normal." Any pain the Veteran experiences in his upper back is "most likely due to his congenital condition of bilateral cervical ribs" which became symptomatic as the Veteran aged. Upon review, the Board affords great probative weight to the August 2021 VA physician's opinions with respect to direct service connection and whether a congenital defect was subject to a superimposed disease or injury during service that resulted in additional disability. In particular, he contemplated all pertinent evidence of record, to include the statements of the Veteran, his relevant medical history, and pertinent medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the physician offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Further, the VA physician clearly considered the Veteran's specific case, providing an alternative etiology of the Veteran's neck and back pain. The Board notes that the Veteran has stated he has experienced neck and back pain since his active-duty service in the Army. However, the Veteran's current statements regarding the chronicity of his pain were submitted to the record many years after the in-service incident. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010); Curry v. Brown, 7 Vet. App. 59 (1994). The medical evidence from the time shortly after his separation from active-duty service show numerous instances where the Veteran specifically denied any neck or back issues. The Veteran even denied any neck or back pain at his February 2011 United States Navy Reserve separation examination, almost ten years after his separation from the Army. The Board finds the August 2021 examiner's findings, as well as his contemporaneous statements made for the purposes of seeking medical treatment, such as his periodic health assessments while in the Reserves, are more probative than his current statements regarding the onset of his neck and back pain. Given the lack of competent and credible evidence in support of the claim, the evidence is against finding a nexus between the Veteran's thoracic spinal disability. Furthermore, there is no competent and credible evidence establishing that the Veteran's congenital condition was worsened by his active-duty military service, nor did he experience a superimposed injury while on active-duty. In reaching its decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection and that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claims are denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.