Citation Nr: 21023427 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-33 576 DATE: April 20, 2021 ORDER Service connection for arthritis of the spine is denied. Service connection for shoulder arthritis is denied. Service connection for flat feet is denied. Service connection for a metal plate in the cervical spine is denied. Service connection for back spasms is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s arthritis of the spine, shoulder arthritis, flat feet, metal plate in his cervical spine, and back spasms began during his active military service, or within a year of his discharge (for the arthritis, especially), or are otherwise related or attributable to his service, including caused or aggravated by a service-connected disability.   CONCLUSION OF LAW The criteria are not met for entitlement to service connection for arthritis of the spine, shoulder arthritis, flat feet, a metal plate in the cervical spine, and back spasms. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1967 to October 1969. In February 2021, the Veteran filed a VA Form 9, Substantive Appeal to the Board, requesting a hearing concerning these claims. In March 2021, the Board sent him a letter explaining that he needed to show good cause for a hearing at this stage of his appeal and, to this end, gave him 30 days to respond. He did not respond within the allotted 30 days, however, or even since, so the Board is proceeding with adjudication of his claims. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 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 an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).   1. Service connection for arthritis of the spine is denied. 2. Service connection for shoulder arthritis is denied. 3. Service connection for a metal plate in the cervical spine is denied. 4. Service connection for back spasms is denied. The Veteran contends that his arthritis of the spine, shoulder arthritis, back spasms, and metal plate in the cervical spine are related to his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of lumbar spine, shoulder, and cervical spine disabilities, the preponderance of the evidence weighs against finding that the Veteran’s claimed disabilities began during service or are otherwise related to an in-service injury, event, or disease. First, VA and private treatment records show the Veteran was likely first diagnosed with arthritis of the shoulders and spine in the early 1990s, the earliest indication of diagnosis of record being 1993, which is decades after his separation from service. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. 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). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).   While the Veteran is competent to report having experienced symptoms of pain in the back and shoulders since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the currently diagnosed disabilities. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran has not provided any specific contentions relating these claimed disabilities to his service. He did report on 2021 VA examination that he completed physical maneuvers during service such as jumping out of trucks and during basic training. However, a description of a specific injury or a chronic or continuing disability since was not described. Such is significant, as the record does not otherwise demonstrate a relationship between the current disabilities and service. Absent any such statement from the Veteran, the evidence weighs heavily against his claims. Further, the January 2021 VA examiner opined that the Veteran’s arthritis of the spine, shoulder arthritis, back spasms, and metal plate in the cervical spine were not at least as likely as not related to an in-service injury, event, or disease. The rationale was that the Veteran’s disabilities likely related back to his post-service on-the-job injuries. The examiner reviewed the Veteran’s 1996 worker’s compensation claim that evidenced an injury to the back and shoulder. The examiner noted that at the time of the 1996 examination, the Veteran was noted to have underlying degenerative arthritis of the left shoulder and lower back. That being the case, there was simply no indication in the record that the Veteran injured his back or shoulders while in service or that he suffered from ongoing symptoms since service. Thus, that underlying arthritis was less likely than not related to his service. At the time of the 1996 examination, the Veteran’s injuries were considered related to his post-service work as a truck driver. These records did not reflect a previous injury dating back to service. Additionally, and along those same lines, there was no evidence that the metal plate in the cervical spine was related to service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).   The examiner further concluded that the Veteran’s back spasms/pain was unrelated to his service-connected diabetic peripheral neuropathy. After examining the Veteran, the examiner concluded that the Veteran’s back spasms are related to flare-ups of his degenerative disc disease and, thus, are not a symptom of his diabetic peripheral neuropathy. The Board finds that the 2021 VA examination opinions are highly probative evidence against the Veteran’s claims. The VA examiner examined the Veteran and considered all the relevant records in the file prior to providing the opinions. The record is lacking evidence of an injury or disease of the shoulders, neck, or lower back that began in service or is otherwise related to service. Accordingly, the Board finds that service connection for arthritis of the spine, shoulder arthritis, back spasms, and metal plate in the cervical spine must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Service connection for flat feet is denied. Like the claims already discussed, the Veteran contends that he has flat feet (pes planus) because of his service, but he has not provided specific contentions as to how this condition began during his service or is attributable to his service. Moreover, the evidence does not tend to support this notion. The service treatment records (STRs) do not reflect a diagnosis of flat feet. There is no indication of flat feet for many decades following service separation, nor has the Veteran reported experiencing this condition in the years following service separation. Finally, in January 2021, a VA examiner physically examined the Veteran and reviewed the file but determined that it was less likely than not that the Veteran’s flat feet were related to his service. The examiner explained that there was no indication of flat feet in service or for many years following service separation. While the Veteran reported at the examination that he was told he had flat feet in service, the STRs do not show indication of flat feet, and the condition was not diagnosed until 2009, many years (indeed decades) after conclusion of his service. The examiner found no indication in the file that the Veteran’s flat feet were related to his service. While the Veteran is competent to report that he was told he had flat feet in service, in this case, the record is not consistent with that report. Moreover, the probative medical evidence, to include the 2021 VA examination opinion, weighs against the contention that the Veteran’s flat feet began in service or are otherwise related to his service. Accordingly, because the elements of service connection have not been met, the claim must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.