Citation Nr: 21011185 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-01 123 DATE: March 1, 2021 ORDER Service connection for right shoulder disability is denied. Service connection for left shoulder disability is denied. Service connection for right elbow disability is denied. Service connection for left elbow disability is denied. Service connection for right hand disability is denied. Service connection for left hand disability is denied. FINDINGS OF FACT 1. The Veteran’s current right shoulder disability is degenerative joint disease which is a known clinical diagnosis which was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 2. The Veteran’s current left shoulder disability is left shoulder strain which is a known clinical diagnosis which was not manifest in service and is unrelated to service. 3. The Veteran’s current right and left elbow disabilities are lateral epicondylitis which is a known clinical diagnosis which was not manifest in service and is unrelated to service. 4. The Veteran’s current right hand disability is degenerative joint disease which is a known clinical diagnosis which was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 5. The Veteran currently has no left hand pathology. His complaints of left hand pain were not manifest in service, are unrelated to service, and are instead attributable to his post-service use of tools that vibrate. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317 3. The criteria for service connection for right and left elbow disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 4. The criteria for service connection for right hand disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 5. The criteria for service connection for left hand disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to June 1986 and from November 1990 to May 1991, with service in Southwest Asia during this latter period of service. We thank him for his service. He appeals from June 2013 agency of original jurisdiction decisions based on February 2012 claims. The Board remanded the matters now on appeal to the agency of original jurisdiction for VA examinations in October 2018, and decided other issues which were also then on appeal. 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Arthritis is considered to be a chronic disease under 38 C.F.R. § 3.309. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A "qualifying chronic disability" is defined, in part, as an undiagnosed illness. 38 C.F.R. § 3.317 (a)(2)(i)(A). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Service connection for right and left shoulder disability Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right or left shoulder disabilities, which the evidence including the August 2019 VA examination report indicates are right shoulder degenerative joint disease (arthritis) and left shoulder strain. The preponderance of the evidence indicates that these were not manifest in service, or, for right shoulder degenerative joint disease, within 1 year following service discharge, and are unrelated to service. There is no competent evidence of record indicating that these were manifest in service or, for arthritis, within 1 year following separation, or are related to service. To the contrary, service treatment records are silent for reference to shoulder trouble, with the Veteran providing a negative report of medical history in November 1986, a report of excellent health in April 1988, and a report of no medical problems in April 1990. He was found fit for release from active duty for training in January 1991 and March 1992, and he denied having or having had arthritis and joint pains on service dental health questionnaire in March 1992. Moreover, private medical records dating from May 2009 through March 2012 show that he denied joint symptoms and had normal musculoskeletal examinations on numerous occasions during that time period. Apparently the first time of record that the Veteran reported joint pain in his shoulders was at the time of his February 2012 claim. After the remand in October 2018, at the time of a VA examination in August 2019, right shoulder degenerative joint disease and left shoulder strain were diagnosed. The examiner indicated that it was less likely than not that either is a result of an exposure event experienced by the Veteran during his Southwest Asia service, and there is no medical opinion of record relating them to that or to any other incident in or aspect of service. The matter of relationship to service pursuant to 38 C.F.R. § 3.317 and undiagnosed illness or medically unexplained multisymptom illness has also been considered. However, the preponderance of the evidence including the August 2019 VA examination reports shows that the Veteran has right shoulder degenerative joint disease and left shoulder strain, which are known clinical diagnoses. Furthermore, there is no competent evidence in the record which indicates that the Veteran's right and/or left shoulder disabilities are medically unexplained conditions or elements of a chronic multisymptom illness. To the contrary, the VA examiner in August 2019 indicated that these are diseases which have clear and specific diagnoses and etiologies. Specifically, the examiner noted that muscle strain and degenerative changes in the joints are physiological changes that reflect increased stress on the joints, wear and tear, trauma, or disease, and that this is common knowledge. Accordingly, service connection cannot be granted for them on the basis of the Veteran's service in the Persian Gulf pursuant to 38 C.F.R. § 3.317. Service connection for right and left elbow disability Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right or left elbow disabilities, which the evidence including the August 2019 VA examination report indicates are right elbow lateral epicondylitis. The preponderance of the evidence indicates that these were not manifest in service and are unrelated to service. There is no competent evidence of record indicating that these were manifest in service or are related to service. To the contrary, service treatment records are silent for reference to right and left elbow trouble, with the Veteran providing a negative report of medical history in November 1986, a report of excellent health in April 1988, and a report of no medical problems in April 1990. He was found fit for release from active duty for training in January 1991 and March 1992, and he denied having or having had arthritis and joint pains on service dental health questionnaire in March 1992. Moreover, private medical records dating from May 2009 through March 2012 show that he denied joint symptoms and had normal musculoskeletal examinations on numerous occasions during that time period. Apparently the first time of record that the Veteran reported joint pain in his elbows was at the time of his February 2012 claim. After remand in October 2018, at the time of a VA examination in August 2019, his current right and left elbow lateral epicondylitis was diagnosed. The examiner indicated that it was less likely than not that either is a result of an exposure event experienced by the Veteran during his Southwest Asia service, and there is no medical opinion of record relating them to that or to any other incident of service. The matter of relationship to service pursuant to 38 C.F.R. § 3.317 and undiagnosed illness or medically unexplained multisymptom illness has also been considered. However, the preponderance of the evidence including the August 2019 VA examination reports shows that the Veteran has right and left shoulder lateral epicondylitis, which are known clinical diagnoses. Furthermore, there is no competent evidence in the record which indicates that the Veteran's right and/or left elbow epicondylitis disabilities are medically unexplained chronic multisymptom illnesses. To the contrary, the VA examiner in August 2019 indicated that these are diseases which have clear and specific diagnoses and etiologies. Specifically, the examiner noted that muscle strain and degenerative changes in the joints are physiological changes that reflect increased stress on the joints, wear and tear, trauma, or disease, and that this is common knowledge. Accordingly, service connection cannot be granted for them on the basis of the Veteran's service in the Persian Gulf pursuant to 38 C.F.R. § 3.317. Service connection for right hand disability Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current right hand disability, which the evidence including the August 2019 VA examination report indicates is right hand degenerative joint disease. The preponderance of the evidence indicates that this was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. There is no competent evidence of record indicating that this was manifest in service or to a degree of 10 percent within 1 year following separation or is related to service. To the contrary, service treatment records are silent for reference to right hand trouble, with the Veteran providing a negative report of medical history in November 1986, a report of excellent health in April 1988, and a report of no medical problems in April 1990. He was found fit for release from active duty for training in January 1991 and March 1992, and he denied having or having had arthritis and joint pains on service dental health questionnaire in March 1992. Private medical records dating from May 2009 through March 2012 show that he denied joint symptoms and had normal musculoskeletal examinations on numerous occasions during that time period. Apparently the first time of record that the Veteran reported joint pain in his hands was at the time of his February 2012 claim. After remand in October 2018, at the time of a VA examination in August 2019, his current right hand degenerative joint disease was diagnosed. The examiner indicated that it was less likely than not that it is a result of an exposure event experienced by the Veteran during his Southwest Asia service, and there is no medical opinion of record relating it to any other incident of service. The examiner’s rationale was that muscle aches and weakness in the joints are physiological changes that reflect increased stress on the joints, wear and tear, trauma, or disease. It was more likely that the Veteran's post-service use of tools that vibrate is contributing to his current hand discomfort, and this is common medical knowledge. The matter of relationship to service pursuant to 38 C.F.R. § 3.317 and undiagnosed illness or medically unexplained multisymptom illness has also been considered. However, the preponderance of the evidence including the August 2019 VA examination reports shows that the Veteran has right hand degenerative joint disease, which is a known clinical diagnosis. Furthermore, there is no competent evidence in the record which indicates that the Veteran's right hand degenerative joint disease disability is a medically unexplained chronic multisymptom illness. To the contrary, the VA examiner in August 2019 indicated that muscle strain and degenerative changes in the joints are physiological changes that reflect increased stress on the joints, wear and tear, trauma, or disease, and that this is common knowledge. Accordingly, service connection cannot be granted for it on the basis of the Veteran's service in the Persian Gulf pursuant to 38 C.F.R. § 3.317. Service connection for left hand disability Based on the evidence, the Board concludes that service connection is not warranted for any current left hand disability which the Veteran has. The VA examiner in August 2019 examined the Veteran, including with X rays, and could find no left hand pathology. The preponderance of the evidence indicates that any current left hand disability or functional impairment of earning capacity from it was not manifest in service and is unrelated to service. There is no competent evidence of record indicating that this was manifest in service or is related to service. To the contrary, service treatment records are silent for reference to left hand trouble, with the Veteran providing a negative report of medical history in November 1986, a report of excellent health in April 1988, and a report of no medical problems in April 1990. He was found fit for release from active duty for training in January 1991 and March 1992, and he denied having or having had arthritis and joint pains on service dental health questionnaire in March 1992. Private medical records dating from May 2009 through March 2012 show that he denied joint symptoms and had normal musculoskeletal examinations on numerous occasions during that time period. Apparently the first time of record that the Veteran reported joint pain in his hands was at the time of his February 2012 claim. At the time of a VA examination in August 2019, the examiner found no left hand pathology to diagnose. The examiner opined that the Veteran's complaints were less likely than not related to a specific exposure event experienced by the Veteran during his Southwest Asia service, and there is no medical opinion of record relating them to that or to any other incident of service. The examiner’s rationale was that muscle aches and weakness in the joints are physiological changes that reflect increased stress on the joints, wear and tear, trauma, or disease. It was more likely that the Veteran's use of tools that vibrate is contributing to his current hand discomfort, and this is common medical knowledge. The matter of relationship to service pursuant to 38 C.F.R. § 3.317 and undiagnosed illness or medically unexplained multisymptom illness has also been considered. However, the preponderance of the evidence including the August 2019 VA examination reports shows that the Veteran has no left hand pathology. Furthermore, there is no competent evidence in the record which indicates that the Veteran's left hand complaints represent a medically unexplained chronic multisymptom illness. To the contrary, the VA examiner in August 2019 indicated that muscle aches and weakness in the joints are physiological changes that reflect increased stress on the joints, wear and tear, trauma, or disease, and that this is common knowledge. Accordingly, service connection cannot be granted for the Veteran's left hand complaints on the basis of his service in the Persian Gulf pursuant to 38 C.F.R. § 3.317. The Veteran’s report in February 2012 that over the years since returning from Desert Storm, he has suffered with joint and muscle pain, is not specific enough to help any of his claims. His reports in March 2012 that he had had pain in his joints for many years, his report in August 2013 that he had had joint pains immediately after service, and his report in December 2014, that his joints had bothered him since the Gulf War have been considered. However, it is noted that there were more specific and repeated credible negative medical histories and findings contradicting onset in service made by the Veteran in recorded service treatment records, including in the years post-service, mentioned above, and there have been negative VA medical opinions based on reviews of the evidence and with supporting rationales for each of the claimed disabilities. These outweigh his more recent statements, in particular because the earlier ones were repeatedly made by Veteran and health care providers more contemporaneous to service, in medical settings. His report at the time of the April 2014 VA examination, that he had worked for 16 years as a welder which involved climbing, bending, and crawling that he was able to do without difficulty also contradicts the more recent statements in support of his claims. While the Veteran reported in January and July 2013 that his private doctor did not seem to know what was causing his joint pains, the VA examiner in August 2019 was able to diagnose them and/or indicate what their etiologies are, and so service connection may not be granted for them, including pursuant to 38 C.F.R. § 3.317. While the Veteran and his wife may feel that the disabilities at issue are connected to service, as reflected in part by February and May 2012 letters from his wife, by the Veteran's report in March 2012 that no one else in his family has joint pain, and that he knows that his problems are related to service, their opinions on these complex medical matters of diagnosis and relationship to service are not competent, as they are laypersons and medical training is required to opine on complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unfortunately, the preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved in the Veteran's favor concerning them. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.