Citation Nr: 21011065 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-10 009 DATE: February 26, 2021 ORDER Entitlement to service connection of a right shoulder disability is denied. Entitlement to service connection of degenerative joint disease (DJD) of the cervical spine is denied. Entitlement to service connection of cervical radiculopathy of the right upper extremity is denied. Entitlement to service connection of a right hand condition is denied. Entitlement to service connection of diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The Veteran did not suffer an in-service incident or injury to his right shoulder; his right shoulder arthritis is not caused or aggravated by his left shoulder rotator cuff disability. 2. The Veteran did not suffer an in-service incident or injury to his cervical spine; his degenerative conditions of the cervical spine are not caused or aggravated by his left shoulder rotator cuff disability. 3. The Veteran’s right upper extremity cervical radiculopathy is a direct result of his non-service-connected cervical spine disability; it is not caused or aggravated by his left shoulder rotator cuff disability. 4. The Veteran’s right hand condition is less likely than not related to any incident of active service, to include his documented 1980 hand contusion. 5. The Veteran’s diabetes mellitus, type II, is not related to any incident of active service; it did not manifest to a compensable degree during service or within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder condition, due to service or a service-connected left shoulder disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for service connection for DJD of the cervical spine, due to service or a service-connected left shoulder disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for service connection for right upper extremity cervical radiculopathy, due to service or a service-connected left shoulder disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 4. The criteria for service connection for a right hand condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for diabetes mellitus, type II, 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2015, June 2016, and November 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, this appeal has previously come before the Board in October 2018 and September 2019, at which time the Board remanded these claims for further development. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis and diabetes, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Even when a disability is not listed as “chronic” for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider when assessing a claim. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 1. Entitlement to service connection of a right shoulder disability 2. Entitlement to service connection of degenerative joint disease (DJD) of the cervical spine 3. Entitlement to service connection of cervical radiculopathy of the right upper extremity The Veteran seeks service connection of a right shoulder disability, DJD of the cervical spine, and cervical radiculopathy of the right upper extremity, which he asserts are secondary to a service-connected left shoulder disability. The Board finds that the claims should be denied. The Veteran was initially afforded a VA examination in March 2015, and the examiner declined to diagnose a right shoulder disability. In a July 2015 opinion, the examiner noted that there was no evidence of a right shoulder disability to account for his right shoulder pain. However, cervical DJD with radiculopathy of the right upper extremity was noted, and his shoulder pain was most likely radiculitis related to cervical stenosis, as such, his right shoulder pain was less likely than not related to or caused by a fall in service, or to the service-connected left shoulder condition. Because this opinion did not fully address all possible theories of secondary causation, the Board remanded the claim for an addendum opinion. In September 2019, the Veteran was afforded new VA examinations of his shoulder and cervical spine, and an addendum opinion was obtained. After diagnosing arthritis in the right glenohumeral joint, and reconfirming the prior diagnoses of degenerative arthritis of the cervical spine and right upper extremity radiculopathy, the examiner provided an opinion in which he stated that the claimed conditions (right shoulder, cervical spine, and right upper extremity radiculopathy) were less likely than not due to or the result of the Veteran’s service-connected left shoulder condition. In support of this conclusion, the examiner noted that there were no findings in the medical record linking the right shoulder to any left shoulder conditions. Further, there were no findings in the medical records linking the cervical spine condition or cervical radiculopathy to a left shoulder, and cervical spine arthritis and cervical radiculopathy would not arise from a left shoulder condition biomechanically and anatomically. The Board again remanded the claim requesting more detailed opinions. In January 2021, a new addendum opinion was given. With regard to the cervical spine and cervical radiculopathy conditions, the examiner reviewed the complete medical record, to include multiple examination reports, contemporary and post-service treatment records, and in-service treatment records. The examiner then stated that the claimed disabilities were less likely than not related to any in-service incident or injury. In support of this opinion, the examiner stated that a thorough review of the service treatment records does not reveal any objective evidence to support an etiology of DJD of the cervical spine, and/or cervical radiculopathy incurred in, caused by, or etiologically related to service. The service treatment records are silent for any neck injury or cervical radiculopathy. There was no evidence of any inability to perform physical activities or the duties of his military occupational specialty in service due to a neck condition. There was no profile status for a neck condition. He denied any neck issues upon separation, and no neck issues were identified in his separation examination. It was far more likely that the Veteran’s degenerative condition of the cervical spine, first noted in 1999, are age related changes. The cervical radiculopathy is directly due to the cervical spine degenerative condition. The examiner further noted that the cervical spine and radiculopathy conditions were less likely than not the result of his left shoulder disability or aggravated beyond natural progression thereby. In support of this opinion, the examiner stated that there is no clear evidence for a review of the orthopaedic literature to suggest that an injury to a joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. In this case, the veteran has experienced chronic, concurred and overlapping symptoms of neck pain with radicular pain radiating to the right shoulder, and separately pain originating from the left shoulder condition. The anatomic proximity and concurrent pain does not establish any causal relationship. the left shoulder rotator cuff condition has no pathophysiological mechanism to aggravate degenerative disc disease of the cervical spine. The development of osteophytes, as noted in the Veteran’s cervical spine, is an age related change of the spine with no etiological relationship to the left shoulder condition. A review of multiple medical texts and treatises did not establish a medical nexus in this matter. Further, there is no clear evidence from review of the orthopaedic literature to suggest that an injury to one joint would have any significant impact on another opposite uninjured joint or limb, unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis. The anatomical proximity and concurrent pain in the neck and left shoulder does not establish any causal relationship. The left shoulder has no pathophysiological mechanism to aggravate degenerative disc disease of the cervical spine. With regard to the right shoulder condition, the examiner also stated that the claimed condition was less likely than not related to any incident of service, or to the left shoulder disability. In support of this opinion, the examiner stated that there was no evidence in the record of any right shoulder injury or incident during active service, and therefore a nexus could not be established. Further, there is no clear evidence from a review of the orthopaedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. This level of severity is not supported based on a review of the record, to include his medical history and examinations. It is not unusual for two joints to share properties in the same person, but one joint’s disease does not “spread” to another or cause damage to it. There is no established pathophysiological mechanism for the Veteran’s service-connected left shoulder rotator cuff disability to cause osteoarthritis of the right shoulder. It is more likely than not that the right shoulder condition is due to the normal wear and tear of aging and not due to or aggravated by the left shoulder disability. The Board finds these opinions, particularly the January 2021 opinions, to be persuasive in this matter. They were rendered by a medical professional in contemplation of the complete medical record, to include a review of the Veteran’s service treatment records, post-service medical records, and VA examination reports. Further, the opinions included a detailed and thorough discussion of how the opinions were reached, and included citation to known medical principles and multiple medical publications and treatises in support. The Board has reviewed the evidence of record, but finds no medical evidence or opinions to contradict the opinions of the 2021 examiner. Here, the Board does acknowledge the Veteran’s attorney’s arguments in a February 9, 2021, response to the supplemental statement of the case that the opinions of the January 2021 examiner may be invalid. The opinions were rendered by a different examiner from the examiner who gave the September 2020 opinions, therefore, the argument that they may be biased is moot. Further, there is nothing of record to indicate that the examiner who gave the opinions was unqualified to do so. A physician’s assistant is qualified to conduct a VA examination and give etiology opinions. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). In this matter, the opinions are thorough, detailed, and supported by significant medical treatise evidence. There is no indication based on the evidence of record or the opinions themselves to question the competency and qualifications of the examiner who provided them. The Board does acknowledge the Veteran’s own firmly held conviction that his left shoulder disability either caused or aggravated his cervical spine and right shoulder conditions, but finds this of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his right shoulder and cervical spine conditions, especially in light of multiple VA examiners’ conclusions to the contrary. See id. In sum, the Board finds that the Veteran’s right shoulder, cervical spine, and cervical radiculopathy conditions are less likely than not related to any incident of active service, and have not been caused or aggravated beyond natural progression by his service-connected left shoulder disability. As such, the claims are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 4. Entitlement to service connection of a right hand condition The Veteran seeks service connection of a right hand condition. The Board finds that the claim should be denied. The Veteran has submitted a letter from his physician stating that he has right hand soft tissue inflammation and extensor tendonitis. The Board has previously acknowledged evidence in the record of a soft tissue injury to the right hand during active service in 1980. Therefore, the question before the Board is whether or not the present disability is related to the in-service right hand injury. The Board originally remanded this claim in 2018 so that an examination could be conducted to establish whether the Veteran had a present hand disability which was related to service. The Veteran was afforded a VA examination in September 2019. The examiner conducted a thorough examination, to include a review of the evidence of record, and a physical examination of the Veteran. The examiner took a history from the Veteran, noting his report of a trip-and-fall incident in approximately 1979 or 1980, resulting in a loud pop. The examiner noted that a contusion was indicated and that it had resolved. The Veteran also experienced present occasional right hand cramping, which the examiner stated was due to cervical radiculopathy. The examiner then stated that the Veteran’s current hand symptoms were less likely than not related to active service. In support of this conclusion, the examiner stated that, based on history of onset, as described by the Veteran’s, and examination findings consistent with a contusion in service in 1980, that condition had resolved, and there is no current specific hand condition. The Board found this opinion to be less than probative of the question and remanded the claim for an addendum opinion. In January 2021, an addendum opinion was provided. The examiner completed a thorough review of the Veteran’s claims file, to include a detailed review of his service treatment records, his post-service treatment records, letters from the Veteran’s private physician, and prior examination reports. The examiner then opined that the Veteran’s claimed condition was less likely than not related to any incident of active service. In support of this, the examiner stated that there is no objective evidence of a chronic right hand condition incurred in, caused by, or otherwise etiologically related to service. The Veteran was seen during service in February 1980 for an injury to the right hand when he fell during kitchen patrol duty two days prior. He was noted to have some mild swelling, and tenderness over the third metacarpal phalangeal joint. He did have full range of motion and good grip, and was diagnosed with a contusion of the right hand. There was no evidence of any ongoing treatment, nor any evidence of inability to perform his duties during the remainder of service due to a right hand condition. He was never placed on medical profile for a right hand condition, and his separation examination did not find any right hand issues. The Veteran did not report a right hand condition upon separation. The available examination records do not show any presently diagnosable right and disability, although there is evidence of an injury to the right middle finger in 2002, which showed normal x-rays. Although private records indicate soft tissue inflammation and extensor tendinitis, there is no mechanism of injury or etiology noted by the private physician. Even if the Veteran does have some symptoms which cannot be attributed to a specifically diagnosed condition, he has shown generally normal examinations and has full use of the hand with complete and full range of motion. The examiner then explained that a contusion is an injury to the soft tissue, with bruising, sometimes swelling and varying degrees of tenderness. There is no evidence that the contusion sustained in 1980, as documented in the record, was chronic or related to the chronic soft tissue inflammation described in 2017 by the private physician. There is no anatomic or pathophysiological basis, and no supporting medical record to connect the two. X-rays have shown that there is no undocumented fracture of the right hand during service. There is no medical evidence of extensor tendinitis in service or documented prior to the 2017 notation indicating such a diagnosis. In addition, the conditions described by the private physician in 2017, appear to have resolved by the time of the 2019 examination, which showed a completely normal hand. Although the Veteran was noted to have injuries to the hand in service, there is no evidence showing a chronic right hand condition is etiologically related to service. The Board finds this opinion to be particularly persuasive in this matter. It was rendered by a medical specialist in contemplation of the complete medical record, to include the Veteran’s recorded medical history, all examinations of the hand, as well as the Veteran’s own lay statements and those of his private physician. The opinion is supported by an exceptionally thorough discussion and includes citation to the evidence of record, as well as known medical principles. The Board has reviewed the evidence of record and finds nothing which would expressly contradict the opinion of the 2021 examiner. In this respect, although the 2017 notation from the private physician indicates a diagnosis of inflammation and tendinitis, there is no indication of the etiology of those conditions. The only discussion of the etiology of either inflammation or tendinitis is the negative opinion of the VA examiner. Finally, the Board does acknowledge the Veteran’s own firmly held conviction that his right hand symptoms are the result of his in-service contusion, but finds this of limited probative value. While the Veteran has indicated continuity of symptoms from the time of service, the Board similarly finds this of limited probative value. While he is certainly competent to report observable symptoms such as pain, once basic competency is met, the Board must consider credibility of the statements. In this matter, there is no indication of any right hand symptoms following the 1980 contusion. He did not report any ongoing symptoms after the incident, and declined to report any hand issues upon separation from active service. There is no indication of any hand symptoms between the contusion in 1980 and 2017 when he was found to have inflammation and tendinitis. Given this lack of documented evidence of a hand issue in the intervening period, the time of his lay statements, and the fact that an examination tends to show generally normal hand functioning, the Board finds this lay evidence to be less than credible for purposes of adjudicating this claim. See Caluza v. Brown, 7 Vet. App. 498 (1995). Further, while lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his right hand symptoms, especially in light of multiple VA examiners’ conclusions to the contrary. See id. In sum, the Board finds that the Veteran’s right hand condition is less likely than not related to any incident of active service, to include in 1980 contusion. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 5. Entitlement to service connection of diabetes mellitus, type II The Veteran seeks service connection of diabetes mellitus, type II. The Board finds that the claim should be denied. As an initial matter, the Board notes a present diagnosis of diabetes mellitus, type II, and therefore the primary criterion of service connection is met. A review of the Veteran’s service treatment records do not indicate any incident or illness during service which would indicate a diagnosis of diabetes. Nonetheless, the Veteran asserts that inconsistencies in his in-service blood sugar readings could indicate diabetes, therefore, the question before the Board is whether the Veteran’s present diabetes is related to any incident or illness during active service, to include the Veteran’s reports of high blood sugar during active service, or if his condition manifested to a compensable degree during service or within one year of separation from active service. In 2018, the Board remanded this claim so that the Veteran could be afforded a VA examination. In September 2019, the Veteran was afforded a VA examination which confirmed his present diagnosis of diabetes mellitus, type II. After a review of the medical record, the examiner concluded that the Veteran’s present diabetes was less likely than not related to any incident of active service. In support of this conclusion, the examiner stated that there were no findings in the service treatment records indicating diabetes, and his separation examination also failed to make such a diagnosis. The Board found this opinion to be of limited probative value as it did not fully address whether or not the Veteran’s diabetes mellitus had onset during or within one year of separation from service, and remanded the appeal for an addendum opinion. In January 2021, a new opinion was given following a thorough review of the claims file, to include the Veteran’s complete medical history and VA examinations. The examiner concluded that the Veteran’s present diabetes did not manifest during active service or within one year of separation thereof, and was not otherwise related to any incident of active service. In support of this conclusion, the examiner stated that the Veteran’s earliest diagnosis of type II diabetes mellitus occurred in 1999, when he was started on an oral medication. There is no evidence of elevated serum glucose or elevated HbA1c levels during service. There was no evidence of any symptoms or examination findings during service consistent with pre-diabetes, and no treatment for elevated glucose levels. The separation examination did not show glucose in the Veteran’s urine, and was otherwise silent for any diabetes-related conditions or symptoms. The Board finds this opinion persuasive. It was rendered by a medical specialist in contemplation of the complete medical record as well as known medical principles. The Board has further reviewed the medical evidence of record and finds nothing which would contradict the opinion of the January 2021 examiner. The Board does acknowledge the Veteran’s own firmly held conviction that his diabetes mellitus had onset during active service, but finds this of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the onset and etiology of his diabetes, especially in light of multiple VA examiners’ conclusions to the contrary, and the fact that the evidence does not document an actual manifestation of the disability until many years after separation from active service. See id. In sum, the Board finds that the Veteran’s present diabetes did not have onset during active service nor within the statutory one year of separation from active service. It is not otherwise related to any incident of active service. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel