Citation Nr: 21008132 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-31 187A DATE: February 11, 2021 ORDER Entitlement to service connection for cervical disability, diagnosed as strain, arthritis and intervertebral disc syndrome, is denied. Entitlement to service connection for left shoulder strain is denied. FINDINGS OF FACT 1. The Veteran’s cervical disability, diagnosed as strain, arthritis and intervertebral disc syndrome, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease during active service, a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 2. The preponderance of the evidence is against finding that the Veteran’s left shoulder strain began during active service, a period of ACDUTRA or INACDUTRA, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical disability, diagnosed as strain, arthritis and intervertebral disc syndrome, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left shoulder strain are not met. 38U.S.C. §§1110, 1131, 5107; 38C.F.R. §§3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to August 1979, June 1980 to August 1980, and April 2005 to July 2006. The Veteran was also a member of the Army National Guard until his retirement in January 2009, including periods of ACDUTRA and INACDUTRA. In December 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript has been associated with the record. In April 2018 and June 2020, the Board remanded these issues for further development. The Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).   Entitlement to service connection for cervical disability, diagnosed as strain, arthritis and intervertebral disc syndrome The Veteran contends that his cervical spine disability is due to a 1980 inservice injury when a tree fell on his head. In the alternative, has also asserted that his disabilities are due to his physical duties as a combat engineer over 30 years of National Guard service. At the Board hearing, he reported that he had physically demanding tasks, involving heavy equipment. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic during active service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has arthritis of the cervical spine, which is a chronic disease under 38 U.S.C. § 1101(3), 38 C.F.R. § 3.309(a), it was not shown as chronic during active service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records are silent with respect to any complaints or injuries to the neck. Importantly, the Veteran’s June 2006 post deployment questionnaire was silent with respect to any problems with the cervical spine. Importantly, an April 21, 2007 service examination for the National Guard showed that the neck and spine were clinically evaluated as normal. In his contemporaneous medical history, the Veteran expressly denied any such issues. Post-service, the first medical evidence of any neck problems is a December 2011 VA treatment record, which is 5 years after his separation from service and 4 years outside of the applicable presumptive period. Moreover, the first medical evidence of degenerative arthritis was 2017. In sum, there was no evidence of arthritis for many years after service and outside the presumptive period. While the Veteran is competent to report experiencing symptoms of neck pain since service and during the presumptive period, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he did not report any neck in April 2007, within one year of his discharge from his most recent period of active duty. Again, there is no medical evidence documenting any such complaints until 2011. Significantly, the Veteran was first diagnosed with arthritis in 2017. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 Fed. Cir. 2006). Moreover, the Veteran is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that the Veteran’s current neck disorder is instead attributable to other factors. Specifically, the July 2020 VA examiner determined that the Veteran’s cervical spine disorder was due to age and overuse, including his job in construction/maintenance. Service connection for a cervical spine disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s cervical spine disability and an in-service injury, event or disease during active service, a period of ACUDTRA or INACDUTRA. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board previously found that the February 2020 VA opinion was inadequate as the it appeared to be contradictory. Thus, the Board remanded the issue for another VA opinion. Importantly, the July 2020 VA examiner opined that the small spur formation from the anterior-inferior endplate margin of C4 and mild levoscoliosis at thoraco-cervical junction as per the 2017 x-ray is less likely as not (less than 50% probability) incurred in/due to active duty service, including the incident with the tree in 1980 and due to combat engineer duties. The examiner rationalized that although the objective evidence fails to support a neck injury in 1980, the benefit of the doubt is provided for this review. The literature is reviewed with regard to combat engineer duties and this knowledge is applied to the opinion/rationale for this review. The examiner continued that in the Reports of Medical History for 1980, 1984, 2007 and 2011 the Veteran checked 'no' to back pain, no comment regarding complaint/pain in the neck. On the 1984 Report of Medical History the Veteran reported, 'I am in good health', and the examiner wrote, 'no present problems with health'. In a 2005 health assessment, the Veteran checked 'excellent' with regard to health in general and checked 'no' to a history of profile or light duty. He also checked 'no' to concerns regarding health. On the 2005 predeployment medical screening: the Veteran answered "no" to question 'do you have any medical problems'. In 2011, the Veteran checked 'yes' for good health. Moreover, clinical examinations, including the 1980, 1984, 1989, 2007 and 2011 Reports of Medical Examination, the examiner reports 'normal' for spine. In 2006, the year of separation from active duty, the VA clinical records document a complaint for the shoulder, but no complaint of neck pain; no clinical findings, diagnosis, treatment for a neck condition. VA clinical records for 2008 and 2009 fail to provide objective evidence for support of a neck condition. In 2011 (5 years after separation from active duty), the primary care physician notes that the Veteran works on road construction/maintenance for the department of transportation. The Veteran reports neck pain off and on and indicates 'a tree fell on me' in the 80's. There was no neck pain during time of the exam and the examiner noted adequate range of motion without spasm. The 2012 - 2016 progress notes fail to provide objective evidence for support of a neck condition. In 2017, a cervical spine x-ray shows small spur and mild levoscoliosis. The literature provides that levoscoliosis is a congenital (developmental) condition and, thus, the condition would not be incurred in/due to active duty. Regarding the cervical spine spur reported from the 2017 x-ray the literature provides that spurs (osteophytes) is often an age-related occurrence due to aging, heredity, poor posture, over-use, injury and other conditions. The Veteran's current risk factors provide evidence for aging and over-use including his job in construction/maintenance. The examiner continued that despite the Veteran's job as a combat engineer in active duty, the objective evidence in the medical record fails to provide a basis for support of the 2017 cervical spine abnormality as due to a (subjective) injury in 1980 while working at his job as a combat engineer. Noting that the (subjectively claimed) injury occurred in 1980, the medical record fails to support a continued, chronic neck condition during active duty nor for about 31 years after the 1980 incident. The Board finds that the VA opinion is adequate because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because it provides detail sufficient to allow the Board to make a fully informed determination. In this regard, the examiner determined that the Veteran’s cervical spine disability was not related to the incidents in service and offered a detailed rationale for such finding. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407(1994)). While the Veteran believes his cervical spine disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the more probative VA opinion. For all the foregoing reasons, the Board finds that the claim for service connection for cervical disability, diagnosed as strain, arthritis and intervertebral disc syndrome, must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for left shoulder strain The Veteran also asserts that his left shoulder strain is due to the 1990 incident when a tree fell on his head and shoulder. He also reports that this disability is due to the physically demanding duties as a combat engineer. He has also specifically stated that his left shoulder disability occurred during his most recent period of active duty while stationed in Afghanistan. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left shoulder strain, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left shoulder strain began during active service, a period of ACUDTRA or INACDUTRA; or is otherwise related to an in-service injury, event, or disease. Importantly, service treatment records are silent with respect to any complaints or injuries pertaining to the left shoulder. Further, there is no evidence of any shoulder issues during a period of ACDUTRA or INACDUTRA. Again, the Veteran has primarily asserted that his disability is related to his last period of active service. Post-service, VA clinical records show that the Veteran reported recent onset of shoulder pain in September 2006, shortly after service, but denied any injury. Importantly, examination at that time found no abnormality and an x-ray showed no bony abnormality. Subsequent VA clinical records are silent with respect to any left shoulder problems. Importantly, no diagnosis of a left shoulder disability is given until the February 2020 VA examination. Moreover, while the Veteran is competent to report having experienced symptoms, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current left shoulder disability. Importantly, the issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board finds the Veteran’s reports of continuity of symptomatology not credible. While the Veteran reported left shoulder pain in September 2006, there were no objective findings at that time. Importantly, subsequent VA clinical records as well as service records, including the April 2007 service examination and medical history are silent with respect to any left shoulder complaints. As such, the Veteran’s reports of pertinent symptomatology are internally inconsistent to his reports in contemporaneous treatment records, which show that he did not report any further shoulder issues for many years. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Again, the Board previously found that the February 2020 VA opinion was inadequate as it appeared to be contradictory. In response to a request for an opinion, the July 2020 VA examiner found that the left shoulder pain noted in 2006 occurred within a year of separation from active duty; however is now considered resolved. The examiner rationalized that per medical record review, current medical literature review, although there is no objective evidence in the record to support the Veteran's subjective claim for injury of the left shoulder in 1980, the benefit of the doubt is provided for this review. A review of the Reports of Medical History for 1980, 1984, 2007 and 2011 finds that the Veteran checks 'no' to painful/trick shoulder. In a 2005 health assessment the Veteran checks 'excellent' with regard to health in general and checks 'no' to profile or light duty, or concerns regarding health. A review of the Reports of Medical Exam finds 'normal' checked by the examiners for upper extremities in 1980, 1984, 1989, 2005, 2007 and 2011. Based on the objective evidence, although the Veteran subjectively claims an injury to the left shoulder in 1980, the Reports of Medical History and Reports of Medical Examinations as previously noted fail to provide objective evidence for a chronic left shoulder condition after 1980. Thus, it is likely (greater than 50% probability) that the 1980 left shoulder condition resolved. Although there is subjective evidence for complaint of left shoulder pain in 2006, an examination at that time found no abnormality and an x-ray performed at that time reported no bony abnormality to the shoulder. Despite the subjective complaint of left shoulder pain in 2006 (within a year of separation) the objective evidence in subsequent progress notes in 2008, 2009, 2011, 2012-2019 fails to support a chronic left shoulder condition. The Veteran does not complain of left shoulder pain nor any other left shoulder abnormality, nor is there clinical evidence within the progress notes to indicate an abnormal left shoulder. No diagnosis for a left shoulder condition is provided in 2006, 2008, 2011 or 2012-2019. Given the subjective complaint for left shoulder pain in 2006 with a normal clinical exam and normal x-ray it is possible (although speculative) that the Veteran possibly experienced a mild strain (as described in current medical literature). Given that the objective evidence fails to support a chronic left shoulder condition for about 14 years, it is likely (greater than 50% probability) that the possible strain resolved. Thus, without objective evidence for a chronic condition of the shoulder it is considered resolved. The 2020 VA examination noted a left shoulder abnormality. However, the abnormality noted is considered new and unrelated to that which was complained of in 1980 or in 2006. With regard to job duties related to combat engineer and the left shoulder injury, the Veteran subjectively reports occurred in 1980: although there is no objective evidence in the record to support the Veteran's subjective claim for injury in 1980, the benefit of the doubt is provided for this review. It is possible that the shoulder may have been injured due to activities related to the job of combat engineer in 1980. However, considering a left shoulder injury sustained in 1980, the active duty medical record fails to provide objective evidence for a continued or chronic left shoulder condition after 1980. The Veteran checks 'no' to painful/trick shoulder in the Reports of Medical History for 1980, 1984, 1989 2007 and 2011. The objective evidence in Reports of Medical Examinations in 1980, 1984, 1989, 2005, 2007 and 2011 goes against a chronic left shoulder condition. These exams report 'normal' for upper extremities. Although there is a subjective complaint for left shoulder pain in 2006 (within a year of separation) the clinical exam was normal on that date and an x-ray report found no abnormality. The objective evidence in subsequent progress notes in 2008, 2009, 2011, and 2012-2019 goes against a chronic left shoulder condition. Although there is objective evidence for a left shoulder condition on the 2020 VA examination, given the absence of a chronic left shoulder condition throughout many years this condition is considered new and unrelated to the (subjectively claimed) left shoulder injury in 1980 and the complaint of left shoulder pain in 2006. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes that his left shoulder disability is related to an in-service injury, event, or disease. The Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428(2011). Consequently, the Board gives more probative weight to the July 2020 VA opinion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for left shoulder strain. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.