Citation Nr: 21022745 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-17 894 DATE: April 19, 2021 ORDER Entitlement to service connection for left shoulder condition is denied. Entitlement to service connection for low back condition is denied. Entitlement to service connection for neck condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s current left shoulder disability began during active service, manifested to a compensable degree within one year of separation from service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s current low back condition began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran’s current neck condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left shoulder condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for low back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for neck condition have not been met. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from December 1982 to January 1992 with subsequent service in the United States Navy Reserve. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The claims were previously before the Board in September 2018 and September 2020, at which times the claims were all remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Such development requested by the September 2020 remand has been completed and the claims have now returned to the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). 1. Left shoulder condition The Veteran contends his current left shoulder disability is related to his active duty military service. The evidence of record shows that the Veteran has been diagnosed with various conditions for his left shoulder, to include rotator cuff tendonitis and AC joint arthritis. Therefore, the first element of service connection, a current disability has been met. The Veteran’s service treatment records (STRs) contain notations referencing left shoulder strains in December 1990 and October 1991. See e.g., December 17, 1990 note (referring to sharp pain in left shoulder when weightlifting); November 29, 1991 note (referring to left shoulder sprain from weightlifting). The Veteran’s Reserve records reflect no complaints involving the Veteran’s left shoulder condition. Post-service treatment records reflect that, beginning in 2008, the Veteran continued to report pain in his left shoulder. The Veteran underwent an MRI in December 2008 and was diagnosed with subscapularis tendinosis with low grade partial thickness intrasubstance tear. The Veteran subsequently underwent surgery in January 2009, specifically, an arthroscopic acromioplasty and arthroscopic distal clavicle excision. A VA opinion addressing the etiology of the Veteran’s shoulder disability was obtained in December 2013. The VA examination opined that the Veteran’s left shoulder rotator cuff tear “if it occurred during his service (not likely) would have become more symptomatic much sooner than it did.” In the Board’s September 2018 remand, the Board found that the December 2013 opinion was inadequate and directed the AOJ to obtain a new medical opinion. The Veteran underwent a VA examination in September 2019. The VA examiner opined that the Veteran’s current left shoulder diagnoses were less likely than not related to an in-service incident, injury, or event. The VA examiner reasoned that the “[Veteran] had an isolated event in service with no additional notes while on active duty, and no records for 12 months post-discharge, it is assumed that it resolved. His post-service occupation included truck driving (in fact, he reported pain while turning the steering wheel) and was operated on from an accepted workman’s compensation claim. Reservist notes did not reveal an acute injury or activity causing shoulder problems, in fact, the Reserves were pro-active in granting a profile to protect his shoulder. From the above, it is less likely as not that his shoulder conditions were related to his active duty service, Reserve service while on drills, or aggravated beyond the natural progression of the disease by his Reserve duty.” The Board, in a September 2020 decision, again found the September 2019 VA opinion to be inadequate and remanded the claim to the AOJ. As a result, an addendum VA medical opinion was obtained in October 2020. The October 2020 VA examiner stated that although the Veteran was diagnosed with various left shoulder strains during his active duty service, “[s]ubsequent medical records showed improvement of the left shoulder. The condition likely resolved as interim annual physical examinations dated January 1987, April 1991, May 1994, May 1999, and April 2004 reflect that the Veteran marked ‘no’ on painful or trick shoulder. Post-military, from 1993-2007, which is a 14-year healthcare gap, were silent for chronic left shoulder complaints. The Veteran starts to complain of chronic left shoulder condition in 2008, where he reports shoulder pain for the last 10 years (still post-active duty). The Veteran was a full-time truck driver at that time. One further work up showed that early arthritis was present in the AC joint left shoulder[.] The Veteran continued to have a diagnosis of left shoulder rotator cuff tendonitis and AC joint arthritis at present.” The VA examiner also pointed out that the other evidence of record reflected that “[the] Veteran’s first job after the military was at FedEx as a sorter, full-time; he started that job in 1992. He started a second job at Toyota, also in 1992. He also cut yards on the weekends, approximately six yards. He started his job with MLGW in August 1992 and has been there ever since. He has now been there for 22 years. His occupation as a field worker consists of driving, lifting, and climbing. Overall, review of medical records reflects an acute and transient left shoulder strain (during active duty) which did not progress to a chronic disability. There is no left shoulder complaints or pathology found within one year of his separation. An acute muscle strain is associated with immediate overuse, or improper use, or fatigue followed by limitation of movement within the affected muscle group. Muscle strains usually resolve within three to six weeks with proper medication and muscle rest. Considering all evidence, due to the long healthcare gap and lack of chronicity of the left shoulder condition found during active service, a chronic left shoulder disability cannot be endorsed. Medical records show that his more than 20-year post-military occupation, consisting of driving, lifting, and climbing, has likely caused his current left shoulder disability.” Based on the above, the Board finds the weight of the evidence indicates that the Veteran's current left shoulder disability is not related directly to service. In this case, while the Veteran's STRs show a diagnosis of a left shoulder strain, as explained by multiple VA examiners of record, it is noted as acute and resolved. Further, the Veteran's service treatment records do not contain any additional complaints of, treatment for, or a diagnosis of a left shoulder condition. With respect to his post-service medical records, the Board finds that the objective medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to a left shoulder condition until 2008 when the Veteran reported shoulder pain. Therefore, continuity of symptoms has not been shown based on the clinical evidence. The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced musculoskeletal symptoms, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient in establishing a relationship between his condition and service. As an initial matter, the Board finds the large gap in treatment since separation from service weighs against the Veteran's claims. Further, the competent medical evidence fails to establish a relationship between active duty and the Veteran’s current symptoms. Specifically, the October 2020 VA examiner opined that the Veteran's left shoulder condition was less likely than not related to his military service. In support of his opinion, the examiner stated that all of the Veteran's medical records were reviewed and determined that the Veteran’s complaints of shoulder pain and diagnoses of left shoulder strain during active duty were isolated incidents and resolved. Further, the VA examiner referenced the Veteran’s post-military occupational history, which was significant for exertion and physical activity involving his left shoulder. Ultimately, the October 2020 VA examiner opined that the Veteran’s more than 20-year history as a truck driver, including his various activities such as lifting, and climbing, was more likely than not the cause of the Veteran’s current left shoulder diagnoses. The Board finds this opinion to be highly probative on the matter at hand because it considers the Veteran's history and provides an adequate rationale based on medical expertise and training. There is otherwise no indication in the lay or medical evidence that a current left shoulder condition may be related to service, including based on continuity of symptomatology. Thus, the appeal must be denied.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  2. Low back condition The Veteran contends his current low back condition is related to his active duty military service. The record reflects that the Veteran was diagnosed with lumbosacral strain in a December 2013 VA examination. As such, the first element of service connection, a current disability, has been established. Regarding in-service incurrence, the Veteran’s STRs reflect varying complaints of back pain during his active duty service. For example, in June 1984, the Veteran reported separate instances of low back pain. See e.g., June 9, 1984 note; June 12, 1984 note. In April 1985, the Veteran reported a back injury when he “fell across a low railing and struck back, mostly on left side.” The injury was assessed as a soft tissue injury. The Veteran again reported low back pain in June 1987. Resolving any doubt in favor of the Veteran, an in-service incurrence of back injury is established. Notably, the Veteran also reported back pain and injuries during his Reserve service. A November 1998 note reflects that the Veteran reported he injured his lumbar region in September 1998 and was continuing to complain of low back pain. An additional October 1998 note reflects that the Veteran reported a back injury occurred during his civilian job, resulting in a back strain, and that he was placed on light duty. The final element to establish service connection requires a nexus between a present disability and an in-service event. Establishing such a nexus generally requires the opinion of a medical professional with training and experience required to reach a determination. In this case, there are at least three VA medical opinions of record. However, in prior Board decisions, the examinations from December 2013 and June 2020 were determined to be inadequate. The most recent examination and opinion of record was provided in October 2020. The examiner noted review of the Veteran's medical history and included an exhaustive list of medical records pertinent to the Veteran's back condition. The provided opinion was that “the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.” The provided rationale included the following: "STRs show complaint of low back pain in June 1984 when the Veteran slipped on water during a field day. He was diagnosed with acute low back pain. He was treated conservatively, as one-week post injury showed resolving back pain. In April 1985, he fell across a low raining and struck his back. X-rays from that time were normal. The Veteran was diagnosed with a muscle bruise. He was again treated conservatively. Follow up showed improvement of the low back pain. Medical records in June 1987 showed back pain which was diagnosed as muscle strain. He was given Motrin for pain relief. Subsequent medical records show improvement of the back condition. The condition had likely resolved as interim physical examinations dated January 1987, April 1991 [and others during Reserve service] marked “no” on recurred back pain. Post-military, from 1993 to 2003, which is a 10-year health care gap, were silent for chronic back complaints. The Veteran started to complain of low back pain in 2004, after working in the garden. Physical examination of the back showed spasm at the paralumbar with limited forward flexion. X-rays were negative. Impression at the time was lumbosacral strain. He was advised back support, NSAIDs, and physical therapy. The Veteran continued to have low back pain at present. An x-ray of the back from December 2012 showed multilevel disc degenerative spurring.” The VA examiner also referenced the Veteran’s post-service occupational history, which included lifting, climbing, driving, and other strenuous activities. The VA examiner concluded by stating “[o]verall, review of the medical records shows an acute and transient low back muscle strain [during service] which did not progress into a chronic disability. There is no back complaints or pathology found within one year of separation… Considering all the evidence, due to the long healthcare gap and lack of chronicity of the back condition found during active service, a chronic low back disability cannot be endorsed. Medical records show that his more than 20 years post-military occupation, which consists of driving, lifting, and climbing, has likely caused his current low back disability.” This VA opinion is highly probative to the issue of whether there is a nexus between the Veteran's current back disability and the in-service injuries described above. It is based on a review of the pertinent records, to include the Veteran's lay statements about the original in-service injury. It provides the underlying reason for the conclusion found and is not otherwise contradicted by the record. Overall, the evidence of record does not show that there is a nexus between the Veteran's current back disability and military service. The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced musculoskeletal symptoms, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient in establishing a relationship between his condition and service. The Board finds that the preponderance of evidence is against the claim; therefore, the benefit of the doubt doctrine does not apply. The claim for entitlement to service connection for a low back disability is denied.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  3. Neck condition The Veteran asserts his current neck disability is related to his active duty military service. Turning to the evidence of record, the Veteran has a current diagnosis of cervical spondylosis. As such, the first element of service connection has been met. The Veteran’s STRs contains numerous complaints of neck pain and a diagnosis of cervical strain. See e.g., April 5, 1983 note (where the Veteran complained of a “crick in the neck” and it was diagnosed as a cervical strain); September 14, 1983 note (where the Veteran reported neck pain); December 20, 1990 note (reported cervical pain). Post-service, the Veteran’s medical records reflect that the Veterans sought private treatment, including physical therapy, for neck pain beginning in 2010. During an initial evaluation in 2012 for physical therapy, the Veteran reported that he had been seeking treatment for neck pain “for years” and that in addition to the pain, he experienced spasms throughout his neck. The Veteran also indicated that he was restricted to lift no more than 30 pounds and has increased pain with overhead lifting and reaching. See e.g., August 8, 2012 physical therapy initial evaluation. As mentioned above, the December 2013 and September 2019 opinions obtained regarding the Veteran’s neck disability was determined to be inadequate in the Board’s September 2018 and September 2020 decisions. As such, an additional opinion was obtained in October 2020. The October 2020 VA examiner opined that the Veteran’s current neck disability was less likely than not incurred in or caused by an in-service injury, event, or illness. As above, the VA examiner noted that the Veteran’s records did reflect several complaints of neck pain and cervical strain in service. However, the VA examiner opined that these instances in service seemingly resolved as subsequent physical examinations during service indicated that the Veteran reported no issues with his neck. The VA examiner further stated that “post-military, from 1993 to 2009, which is 16 years health care gap, were silent for neck complaints. The Veteran started to complain of neck pain in 2010. The Veteran was a field worker for MLG&W, which consisted of lifting, driving, and climbing at the time. The Veteran continued to have cervical neck pain in 2011 at which time an MRI of the cervical spine showed degenerative disc disease with spondylolisthesis at C6-C7.” Again, the VA examiner opined that “the medical records show an acute and transient cervical neck strain during service which did not progress into a chronic disability. There is no neck complaints or pathology within one year of his separation… Considering all evidence, due to the long health care gap and lack of chronicity of the cervical neck condition found during active service, a chronic cervical neck disability cannot be endorsed. It is at least as likely as not that the Veteran’s current neck disability is attributed to the Veteran’s post-service occupation.” The Board finds this VA opinion is highly probative to the issue of whether there is a nexus between the Veteran's current neck disability and the in-service injury and complaints described above. It is based on a review of the pertinent records, to include the Veteran's lay statements. It provides the underlying reason for the conclusion found and is not otherwise contradicted by the record. Significantly, the VA examiner attributed the Veteran’s current disability to his post-service occupation. Overall, the evidence of record does not show that there is a nexus between the Veteran's current neck disability and military service. The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced musculoskeletal symptoms, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient in establishing a relationship between his condition and service. The Board finds that the preponderance of evidence is against the claim; therefore, the benefit of the doubt doctrine does not apply. The claim for entitlement to service connection for a neck disability is denied.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, Associate 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.