Citation Nr: 21013662 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-51 432 DATE: March 10, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for a bilateral hip disability is denied. Service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. The Veteran’s disability 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. 2. The Veteran’s bilateral hip disability 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. 3. The Veteran’s right shoulder disability 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. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been 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 a bilateral hip disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right shoulder disability have not been 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, who is the appellant in this case, had service from July 1964 to July 1968. In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in October 2020, and remanded these issues for additional development in order to request VA examination opinions. After the development was completed, the case returned to the Board for further appellate review. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service Connection 1. Service connection for a lumbar spine disability is denied. 2. Service connection for a bilateral hip disability is denied. 3. Service connection for a right shoulder disability is denied. The Veteran contends that his lumbar spine degenerative arthritis, bilateral hip osteoarthritis, and right shoulder osteoarthritis and rotator cuff tear are all related to service. Specifically, the Veteran has testified that he was injured after an incident during service where he was slowly backing up while driving on the right side of his small, personal vehicle when a troop carrier backed into the left side of his car, pushing him up against the door and hitting his hip, right shoulder, and head. He reported that he did not seek medical treatment at the time, but was sore and had pain in his low back and hips and could not raise his arm above his head for the rest of service. He reported that within a year of his separation from service he was given a physical as part of going to work for a civilian employer. He recalled that x-rays from that civilian physical showed degenerative changes in his back, hips, and shoulder. 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic 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 (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has current diagnoses of lumbar spine degenerative arthritis, bilateral hip osteoarthritis, and right shoulder osteoarthritis as evidenced by November 2020 VA examinations. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, these disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. Service treatment records show no complaints related to his back, hips, or right shoulder in service. The earliest post-service medical record in evidence is an April 1994 medical evaluation. The private evaluation notes that the Veteran provided x-rays of his pelvis that showed moderately severe degenerative arthritis in both hips with bilateral acetabuloprotrusio and lumbar spine x-rays that were within normal limits except for minor degenerative changes. A November 1995 letter from the Veteran’s private doctor stated that recently taken x-rays show moderately severe arthritic changes in the bilateral hips with no other significant deterioration since previous x-rays were taken in October 1993. The lumbar spine x-rays showed no degenerative joint disease and were otherwise normal, except for possible spondylolysis L5, which was the only change noted compared to the October 1993 x-rays. The evidence shows complaints for right shoulder pain beginning in 2012, but a diagnosis for right shoulder arthritis did not occur until shown in June 2019 VA treatment records. Based on the foregoing, private treatment records show the Veteran was not diagnosed with bilateral hip arthritis until October 1993 and minor degenerative changes of the lumbar spine in April 1994, as well as right shoulder arthritis until June 2019, all of which occurred decades after his separation from service and decades outside of the applicable presumptive period. This multi-year gap between service and treatment is one factor, among others, weighing against a finding of continual symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for a condition can be considered as one factor in resolving a claim). While the Veteran is competent to report experiencing symptoms of low back, hip, and right shoulder pain consistently since service, 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 affirmatively denied experiencing swollen or painful joints, arthritis, painful or “trick” shoulder, recurrent back pain on his November 1967 and April 1976 Report of Medical History, and was found to have no spine, shoulder, or hip abnormalities on reenlistment examinations for Naval Reserves service in July 1969 and April 1976. In cases where the Veteran was not involved in combat, “…the Board may use silence in the [service treatment records] as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the [service treatment records].” Kahana v. Shinseki, 24 Vet. App. 428, 440 (Lance, J., concurring; see also FED.R.EVID. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). Further, while the Veteran asserts that the reported symptoms were manifestations of low back, bilateral hip, and right shoulder arthritis, he is not competent to make this determination as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for low back, bilateral hips, and right shoulder disabilities 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 low back, bilateral hips, and right shoulder disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The November 2020 VA examiner opined that the Veteran’s low back, bilateral hips, and right shoulder disabilities are less likely as not related to an in-service injury, event, or disease, including a 1965 motor vehicle accident. The rationale was that the objective findings are not consistent with an injury in service of sufficient severity to cause significant degenerative change in the low back, bilateral hips, and right shoulder, or cause a right shoulder rotator cuff tear. Furthermore, the VA examiner pointed out there are numerous medical evaluations following the injury in service that are negative for any abnormal low back, bilateral hip, and right shoulder findings or symptoms. The VA examiner noted that the MVA, as reported by the Veteran, occurred at low speed and was without injury that prompted medical care. The VA examiner explained, “While trauma can certainly contribute to the development of degenerative arthritis, this trauma would be expected to be of sufficient severity as to warrant medical evaluation and/or treatment.” Moreover, the VA examiner pointed out that the Veteran did not seek any evaluation or treatment following the accident, and continued with his military duties over a ten year period. A negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds this medical opinion highly probative of a negative nexus between the Veteran’s current low back, bilateral hip, and right shoulder disabilities and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While the Veteran believes his low back, bilateral hip, and right shoulder disability are related to an in-service injury, event, or disease, including a 1965 MVA, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a full review of the record, the weight of the evidence demonstrates that the low back, bilateral hip, and right shoulder disability did not have onset in service, were not manifest to a compensable degree within one year of separation from service, and are not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.