Citation Nr: A21020632 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210329-149119 DATE: December 29, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran's right shoulder disability did not originate in service, within a year of service, and is not otherwise etiologically related to his active service. 2. The Veteran's cervical spine disability did not originate in service, within a year of service, and is not otherwise etiologically related to his active service CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to May 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2021 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2021, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) requesting a Hearing Review, indicating he would submit additional evidence he wished considered in support of his appeal within 90 days after his hearing. 38 C.F.R. §§ 20.202(b)(2); 20.303. This decision has been written consistent with this AMA framework. In August 2021, the Veteran testified at a Board videoconference hearing before the undersigned. 1. Right Shoulder and Cervical Spine Disability The Veteran seeks entitlement to service connection for a right shoulder and a cervical spine disability. Specifically, he asserts that his current right shoulder condition is etiologically related to an in-service assault. See August 2021 Board Hearing Transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence of record includes service treatment records (STRs) which document that the Veteran was admitted to the hospital in February 1984 and that he had an abrasion to his right shoulder and back. Additionally, a March 1987 report of medical examination at separation reflects that his upper extremities were evaluated as a normal. On the corresponding report of medical history, he denied having a painful or "trick" shoulder, recurrent back pain or swollen or painful joints. The Veteran marked "YES" on the same question asking about a head injury. In a separate section on the March 1987 report of medical history, he remarked that he was in good health and on the section asking him to elaborate on the conditions he had, the Veteran noted a head injury resulting in a concussion, but not a right shoulder condition. VA treatment records are silent for any complaints or treatment for a right shoulder or neck condition. A VA shoulder examination was obtained in February 2021. The examiner noted right shoulder pain and abnormal limitation of motion. However, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. In support of this opinion, the examiner stated that there was no documentation in STRs of any complaints of shoulder problems after the initial treatment following the assault. As the STRs did not document any further complaints or treatment, the examiner found that a nexus had not been established. Additionally, a VA cervical spine examination was obtained in February 2021. The examiner noted abnormal range of motion (ROM) and the Veteran reported pain that kept him up some nights. He also reported that his cervical spine disability interfered with his ability to work. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. In support of this opinion, while the examiner noted that the current symptoms were reflective of neck pain, that there was no documentation in the STRs of any complaints of neck problems after the initial treatment for the assault. In addition, the examiner noted no evidence to support a claim of a chronic condition. Accordingly, the examiner concluded that a nexus had not been established. Lastly, in a September 2021 letter, Dr. Sandhu stated the Veteran was assaulted in 1986 resulting in cervical spine and shoulder injuries, and that his present symptoms were "as likely as not" a result of that assault. No rationale was provided. After a review of the record, the Board finds that the preponderance of the evidence is against entitlement to service connection for a right shoulder and cervical spine disability. Initially, the Board notes that the Veteran was assessed with right shoulder and cervical spine symptoms, including pain and limited ROM. See June 2021 VA examinations. As such, the first element of service connection is met. Concerning the second element of service connection (in-service incurrence or aggravation of a disease or injury), the Board notes that the February 1984 STR confirms the Veteran was admitted to the hospital with right shoulder and back abrasions. Accordingly, the second element of service connection has been met. However, the third element has not been met. In this regard, the Board finds the February 2021 VA examinations, as well as the STRs the most probative evidence of record. In this regard, the February 2021 VA examiner specifically found it less likely than not that the current right shoulder and cervical spine disabilities were related to service. Both opinions are supported by the lack of STRs documenting complaints or treatment for a right shoulder or cervical spine condition. The Board further finds the examiner's reasoning directly supported by the March 1987 separation examination which did not document any right shoulder or cervical spine condition, and the Veteran had specifically denied having any such conditions or symptoms such as swollen or painful joints, despite his reporting other medical conditions. The Board further notes that a review of the post-service medical records also show they are also silent for any complaints or treatment related to the conditions on appeal, which further supports the stated rationales. The Board recognizes the September 2021 letter by Dr. Sandhu who provided a positive nexus opinion for the claims on appeal. However, this opinion is not supported by any rationale. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, as the September 2021 nexus opinion letter is absent any supportive rationale, the Board finds the VA examination reports of record that are accompanied by supporting rationales to be of more probative value. As discussed above, the Veteran testified during the August 2021 Board hearing that he first injured his right shoulder and cervical spine during service and that he has had relevant symptoms since that time. The Board presumes that had he continued to have consistent right shoulder and cervical spine problems since his injury in February 1984, he would have reported this history on his March 1987 medical history report at separation or those problems would have been noted by the physician in the corresponding report of medical examination. In this regard, he did report other medical conditions at that time. As neither of these things occurred, the Board does not find credible his report of continued right shoulder and cervical spine problems during or after service. Rather, the Board credits the medical history shown by the medical evidence of record, which is negative for any such chronic problems during service or for many years thereafter. Consequently, continuity of right shoulder and cervical spine symptomatology from service to the present is not shown. While the Veteran is competent to report purported symptoms such as pain, without evidence showing that he has medical training or expertise, he cannot competently provide a medical nexus opinion between a current right shoulder or cervical spine diagnosis and an in-service event. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, to the extent he may be competent to opine as to medical etiology, the Board finds his lay assertions in the present case outweighed by the February 2021 VA medical examiner's opinions, who determined that the there was no nexus between any right shoulder and cervical spine symptoms and service. The examiner has training, knowledge, and expertise on which he relied to form his opinion, and he provided a persuasive rationale. Importantly, there is no medical evidence to the contrary. (Continued on next page) Thus, the Board finds that the third Shedden requirement has not been met. 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 claims for service connection for right shoulder and cervical spine disability. The claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). C. LAMB Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.