Citation Nr: 21009167 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 12-07 185 DATE: February 19, 2021 ORDER Service connection for a chronic lumbar spine disorder is denied. Service connection for left lower extremity radiculopathy is denied. Service connection for right lower extremity radiculopathy is denied. Service connection for a chronic right shoulder disorder is denied. Service connection for a chronic left hip disorder is denied. Service connection for a chronic right hip disorder is denied. Service connection for a neurological disorder of the left upper extremity is denied. Service connection for a neurological disorder of the right upper extremity is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that any lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, or bilateral hip disorder is due to or the result of the Veteran’s active service. 2. The Veteran has not been diagnosed with a neurological disorder of either upper extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 4. The criteria for service connection for a chronic right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for a chronic left hip disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 6. The criteria for service connection for a chronic right hip disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 7. The criteria for service connection for a neurological disorder of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 8. The criteria for service connection for a neurological disorder of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1982 to August 1982 and January 2003 to April 2004, to include service in Southwest Asia. In connection with this appeal, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in November 2017. A transcript of that hearing is of record. This case has been advanced on the Board's docket. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While 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. The Veteran’s service records show he was stationed in Iraq during his second period of active service. As such, the Board finds that the Veteran’s active service qualifies as being stationed in Southwest Asia for the purposes of 38 C.F.R. § 3.317. The Veteran filed service connection claims for a lumbar spine disability with bilateral lower extremity radiculopathy, a right shoulder disorder, a bilateral hip disorder, and a bilateral upper extremity neurological disorder, which he asserts is due to his service. However, these conditions are known, diagnosed, medical conditions. As such, a lumbar spine disability with bilateral lower extremity radiculopathy, a right shoulder disorder, a bilateral hip disorder, or a bilateral upper extremity neurological disorder is not considered to be an undiagnosed illness or an indicator of an unexplained multi-symptom illness, and these conditions may not be presumed to be related to the Veteran’s service under provisions applicable to undiagnosed illness or unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317. In November 2009, VA determined that the Veteran’s STRs from his first period of active service from March 1982 to August 1982 were unavailable. As to VA’s duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). A diligent effort to obtain the Veteran’s STRs from his first period of active service was undertaken, but the Veteran’s records were not available. However, as the Veteran asserts that his lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, bilateral hip disorder, and bilateral upper extremity neurological disorder are due to his second period of active service from January 2003 to April 2004, the unavailable STRs from his first period of active service are not relevant to the issues before the Board. Lumbar Spine Disorder with Bilateral Lower Extremity Radiculopathy, Right Shoulder Disorder, and Bilateral Hip Disorder The Veteran filed service connection claims for a lumbar spine disorder with bilateral lower extremity radiculopathy, a right shoulder disorder, and a bilateral hip disorder, which were denied by December 2009 and July 2010 rating decisions. At the November 2017 Board hearing, the Veteran testified that he injured his lumbar spine, right shoulder, and bilateral hips while lifting a heavy box that resulted in his service-connected left shoulder disability. An October 2018 Board decision remanded the claims for further development. The Veteran’s STRs do not show any complaints, treatment, or diagnosis for a chronic lumbar spine disorder, bilateral lower extremity radiculopathy, a chronic right shoulder disorder, or a chronic bilateral hip disorder. While the Veteran’s STRs document an injury to his left shoulder during his active service, his STRs do not document any lumbar spine, right shoulder, or hip complaints. On a March 2004 Post-Deployment Questionnaire, he specifically denied having back pain. He did report having swollen, stiff, or painful joints, but did not specify which joints. As such, the Veteran’s STRs do not show any symptoms, treatment, or diagnosis for a chronic lumbar spine disability with bilateral lower extremity radiculopathy, a chronic right shoulder disability, or a chronic bilateral hip disability. After the Veteran’s separation from active service, his medical records show that he first complained of lumbar spine and right shoulder symptoms in September 2005. He reported that he had back and right shoulder pain since lifting a heavy box during his active service. A lumbar spine x-ray showed mild arthritis. A September 2009 x-ray of his bilateral hips was normal. In September 2009, the Veteran was afforded a VA examination for his right shoulder disorder. He reported that he injured both shoulders during his active service lifting a heavy box. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s STRs were silent for a right shoulder condition. In April 2010, the Veteran’s physician reported that the Veteran presented with continuous back, right shoulder, and bilateral hip pain. His physician noted that the Veteran reported that he injured his back, shoulders, and hips lifting heavy boxes during his active service. His physician reported that continuous heavy lifting could cause degenerative changes. His physician reported that putting stress on the vertebras could result in radiculopathy and neuropathy. His physician concluded that it was more probable than not that the Veteran’s back, right shoulder, and bilateral hip disorders were secondary to his duties during active service. In February 2020, the Veteran was afforded a VA examination. He reported back, right shoulder, and hip pain due to the same incident that resulted in his left shoulder injury during active service. The examiner diagnosed the Veteran with lumbar spine arthritis with bilateral lower extremity radiculopathy, right shoulder rotator cuff tendonitis, bursitis and arthritis, and bilateral hip strains. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s lumbar spine disorder, bilateral lower extremity radiculopathy, right shoulder disorder, or bilateral hip disorder was less likely than not due to his active service. The examiner reported that the Veteran’s STRs were silent for any back disorder, bilateral lower extremity radiculopathy, right shoulder disorder, or bilateral hip disorder during his active service or within one year of separation from active service. Here several medical opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine on an orthopedic condition. As such, each opinion is considered to constitute both competent and credible evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. After weighing all the evidence, the Board finds the greatest probative value in the February 2020 VA examiner’s opinions, which considered the elements necessary to substantiate a service connection claim. The Veteran’s physician reported that the Veteran presented with continuous back, right shoulder, and bilateral hip pain. His physician noted that the Veteran reported that he injured his back, shoulder, and hips lifting heavy boxes during his active service. His physician reported that continuous heavy lifting could cause degenerative changes. His physician reported that putting stress on the vertebras could result in radiculopathy and neuropathy. His physician concluded that it was more probable than not that the Veteran’s back, right shoulder, and bilateral hip disorders were secondary to his duties during active service. However, his physician provided no rationale for his opinion and did not refer to any medical evidence within the Veteran’s claims file that led him to his conclusion. This appears to be highly relevant in that the Veteran’s STRs did not show any complaints, treatment, or diagnosis for a chronic lumbar spine disorder with bilateral lower extremity radiculopathy, a chronic right shoulder disorder, or a chronic bilateral hip disorder during his active service or within one year of his separation from active service. Additionally, the Veteran’s physician did not explain the absence of any treatment for any back, shoulder, or hip complaints for over a year after his active service. While the Veteran reported that he injured his back, right shoulder, and hips during his active service due to lifting a heavy box, the first evidence of any current symptoms is not until September 2005, seventeen months after his separation from active service. Finally, his physical specifically noted that the Veteran reported he injured his back, shoulder, and hips in active service. As such, the Board finds that the opinion of the Veteran’s physician is based on the Veteran’s own self reports and not on any objective medical evidence, which undermines the probative value of the opinion. Conversely, the February 2020 VA examiner concluded that the Veteran’s lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, and bilateral hip disorder were less likely than not due to his active service and specifically explained why. The February 2020 VA examiner is shown to have conducted a thorough examination, reviewed and considered the pertinent evidence of record, and provided adequate rationale for his opinions. The Veteran’s reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board appreciates the opinion of the Veteran’s physician. However, ultimately, the February 2020 VA examiner’s opinions are given greater weight. The opinions by the February 2020 VA examiner were fully grounded in the medical evidence. The February 2020 VA examiner was fully apprised of the Veteran’s in-service injury to his left shoulder. The February 2020 VA examiner clearly explained why the Veteran’s lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, and bilateral hip disorder were less likely than not due to his active service. Here, the support provided by the February 2020 VA examiner for his opinions is found to be greatly superior to the opinion of the Veteran’s physician, which failed to address the lack of medical evidence of a lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, or bilateral hip disorder during the Veteran’s actives service or within one year of his separation from active service. Given its grounding in the medical evidence in this case, the opinions of the February 2020 VA examiner are found to be the most probative evidence in this case, and therefore are afforded the greatest weight. Consideration has been given to the Veteran’s assertions that his lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, and bilateral hip disorder were due to his active service. He is clearly competent to report the symptoms of these conditions, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while he may describe symptoms, he lacks the medical training or qualification either to diagnose a chronic lumbar spine, right shoulder, or hip disability or to relate it to any in-service event. Id. The record does not contain evidence of a diagnosis of an ongoing chronic lumbar spine disorder, chronic right shoulder spine disorder, or chronic bilateral hip disorder related to his active service, as the evidence of any complaints do not appear until more than a year after his separation from active service. Furthermore, his STRs do not document any chronic lumbar spine, chronic right shoulder, or chronic hip diagnoses. As such, the Board does not find that the evidence of record shows continuous symptomatology. The Board also notes that the Veteran is not entitled to presumptive service connection for a lumbar spine disorder, a right shoulder disorder, or a bilateral hip disorder. The record contains no objective medical evidence of a chronic lumbar spine disorder, a chronic right shoulder disorder, or a chronic hip disorder until over a year after his separation from active service. In addition, the record does not contain evidence of any lumbar spine, right shoulder, or hip injury in service that resulted in a diagnosis of arthritis within one year of separation from active service. Therefore, the presumption of service connection has not been triggered. Consideration has also been given to the Veteran’s assertions that his lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, and bilateral hip disorder were the result of his active service. He again is noted to be competent to report his own symptoms or matters within his personal knowledge. However, the Veteran’s STRs do not show a diagnosis for a chronic lumbar spine disorder with bilateral lower extremity radiculopathy, a chronic right shoulder disorder, or a chronic bilateral hip disorder during his active service or the year following his separation from active service, which serves to sever any continuity from service. Accordingly, the criteria for service connection have not been met for a chronic lumbar spine disorder with bilateral lower extremity radiculopathy, a chronic right shoulder disorder, or a chronic bilateral hip disorder. That is, the evidence does not show that a lumbar spine disorder with bilateral lower extremity radiculopathy, a right shoulder disorder, or a hip disorder was diagnosed in service or within a year of service, and the weight of the evidence is against a finding that any lumbar spine disorder with bilateral lower extremity radiculopathy, right shoulder disorder, or hip disorder has existed continuously since service. Therefore, the claims are denied. Bilateral Upper Extremity Neurological Disorder The Veteran filed a service connection claim for a bilateral upper extremity neurological disorder, which was denied by a July 2010 rating decision. The Veteran asserts that he has a bilateral upper extremity neurological disorder. At the November 2017 Board hearing, he testified that he was diagnosed with a neurological disorder about a year after he returned from Southwest Asia and told by his physician that it was possibly due to the fall he experienced during his active service. The Veteran’s STRs do not show any symptoms, treatment, or diagnosis for a bilateral upper extremity neurological disorder during his active service. In a March 2004 Post-Deployment Health Assessment, he indicated that he had numbness or tingling in his hands or feet. However later in a March 2004 separation physical, he did not report any neurological symptoms. As such, his STRs do not document any bilateral upper extremity neurological disorder. After his separation from active service, the Veteran’s claims file does not show any complaints, treatment, or diagnosis for a bilateral upper extremity neurological disorder. In November 2020, the Veteran was afforded a VA examination. He reported subjective complains of having occasional cramps and numbness of both hands. On examination, he had a normal sensory examination. The VA examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy in either upper extremity. The examiner reported that there was not enough evidence found to warrant a radiculopathy condition for the Veteran’s subjective complaints. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that any bilateral upper extremity radiculopathy was less likely than not due to the Veteran’s active service as the Veteran’s STRs was silent for any upper extremity radiculopathy during the Veteran’s service or within one year of separation from active service. While the Veteran asserts that he has a bilateral upper extremity neurological disorder, the diagnosis of such a disability requires clinical testing and medical expertise, and cannot simply be diagnosed by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose this condition or relate any radicular symptoms to any incident during his active service. See Jandreau, 492 F.3d 1372. As such, there is then no need to address whether his lay statements in this regard are also credible. Id. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here the Veteran has not shown by medical evidence the presence of any bilateral upper extremity neurological disorder. Nor does the evidence establish any physical functional impairment that would suggest a disability even in the absence of a diagnosis. See Saunders v. Wilkie, No. 17-1466 (Fed. Cir. 2018). As such, the claims file does not show any treatment or diagnosis for any bilateral upper extremity neurological disorder; in the absence of objective indications of a disorder, the Board finds that service connection is not warranted. Accordingly, the Board finds that the evidence is against the claim, and entitlement to service connection for a bilateral upper extremity neurological disorder is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.