Citation Nr: 21025397 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-20 687 DATE: April 28, 2021 ORDER Service connection for a back disability is denied. Service connection for a neck disability, to include a secondary to a back disability, is denied. Service connection for a right arm disability, to include as secondary to a back or neck disability, is denied. Service connection for a left arm disability, to include as secondary to a back or neck disability, is denied. FINDINGS OF FACT 1. The Veteran’s current back arthritis was not incurred during service, did not manifest during his first post-service year, and is not related to his service otherwise. 2. The Veteran’s current neck arthritis, along with associated radiculopathy or neuropathy, was not incurred during service, did not manifest during his first post-service year, is not related to his service otherwise, and was neither caused nor aggravated by a service-connected disability. 3. The Veteran’s current right cubital tunnel syndrome status post surgery was not incurred during service, is not related to his service otherwise, and was neither caused nor aggravated by a service-connected disability. 4. The Veteran’s current left shoulder arthritis was not incurred during service, did not manifest during his first post-service year, is not related to his service otherwise, and was neither caused nor aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.307, 3.309, 4.71A Diagnostic Codes 5003 and 5010. 2. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 4.71A Diagnostic Codes 5003 and 5010. 3. The criteria for service connection for a right arm disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a left arm disability have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 4.71A Diagnostic Codes 5003 and 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to June 1976. This matter is on appeal from a November 2015 rating decision. In September 2019, the Veteran testified regarding it at a hearing before the undersigned Veterans Law Judge of the Board of Veterans’ Appeals (Board). The Board dismissed service connection for a left knee disorder and granted service connection for tinnitus and for bilateral hearing loss in a December 2019 decision. Service connection for disorders of the back, neck, right shoulder, and left shoulder were denied. The Veteran appealed these denials to the Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the Board decision regarding them in September 2020. This matter accordingly has been returned to the Board for readjudication. For the reasons explained herein, the Board recharacterizes the shoulder issues into issues concerning the arms at this time. Service Connection Direct service connection is established when there is a nexus between a current disability and an injury or disease incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). It also is established for a disease diagnosed after separation if incurred during service. 38 C.F.R. § 3.303(d). When the current disability is a chronic disease, service connection is presumed under certain circumstances. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Secondary service connection is established when a current disability is caused or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a, b). The claimant is afforded the benefit of the doubt when there is an approximate balance of evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The applicable standard accordingly is at least as likely as not. Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Back Disability The Veteran contends that he has a current back disability as a result of a back injury he sustained while undergoing training during service. Specifically, he recounts experiencing back pain after carrying 106 recoilless rifle barrels up a mountain to a firing range at Camp Pendleton in 1975. He further recounts being treated at a naval clinic, where he was given muscle relaxers but nothing more intense because he feared that would mean having to repeat his training. Despite this treatment, he reports that his back pain persisted. After service, the Veteran indicates initially receiving private treatment and later receiving no treatment for his back pain due to his lack of insurance and inability to pay for it otherwise. He finally indicates receiving VA treatment, where he put off complaining about back pain until after his more pressing eye issues were addressed. To be current, a disability must be present near or at the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is undisputed that the Veteran has a current disability. His claim was filed in July 2015. An August 2014 VA treatment record concerning his back and another musculoskeletal problem contains diagnoses of chronic pain as well as underlying osteoarthritis. Subsequent VA treatment records from December 2014 clarify this latter diagnosis, noting that X-rays and a magnetic resonance imaging (MRI) scan showed degenerative disease primarily at L5-S1. Finally, the Veteran’s 2018 VA treatment records reiterate each of the aforementioned diagnoses. Arthritis, regardless of the type, is a chronic disease. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). Service of 90 days or more during a period of war or after December 31, 1946, is needed to qualify a veteran for presumptive service connection for a chronic disease. 38 U.S.C. § 1112(a); 38 C.F.R. § 3.307(a)(1). The Veteran clearly qualifies. He indeed served for over a year in the 1970’s. Some of this time also was during the Vietnam Era period of war. 38 U.S.C. § 101(29)(B); 38 C.F.R. § 3.2(f). To establish presumptive service connection for arthritis, it must manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). The Veteran was not diagnosed with back arthritis between his June 1976 separation and June 1977. There further is no basis to conclude he had it then even though it was not diagnosed. His assertions of back pain then, even if credible (see below), are not sufficient since X-rays or similar typically are needed to confirm arthritis. 38 C.F.R. § 4.71A Diagnostic Codes 5003, 5010. Yet there is no medical evidence, whether X-rays or otherwise, dated during his first post-service year. Accordingly, presumptive service connection is not warranted. Turning to direct service connection, the Veteran’s service treatment records are silent for a back injury or disease. They do not reflect that he ever complained of or received treatment of any kind for a back problem, in other words. He additionally specifically denied ever having or now having recurrent back pain as well as bone, joint, or other deformity and arthritis, rheumatic, or bursitis at his June 1976 separation examination. His spine was found to be normal at that time. Overall, the Veteran related being in good health and not taking any medication. There is no indication that any service treatment records are missing. Indeed, they span the entire period the Veteran served and reference his presence at Camp Pendleton. They further include entrance and separation examinations, vaccination/immunization information, test results, a chronological record of care, and an abstract of service and medical history. The Veteran is competent to report his personal experiences. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). As such, he is competent to recount experiencing back pain after carrying 106 recoilless rifle barrels up a mountain while training at Camp Pendleton during service. The JMPR granted by the Court directed the Board to consider the credibility of this recount. Facial plausibility, interest, bias, internal inconsistency, consistency with other evidence, witness demeanor, and even bad character to an extent are factors in this regard. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). That the Veteran was at Camp Pendleton is confirmed by his service treatment records as well as his service personnel records. It is facially plausible, given his military occupation specialty of anti-tank assault man shown on his DD-214, that he would have carried 106 recoilless rifle barrels while training there. It also is facially plausible that he would have experienced back pain as a result, for which he sought treatment and was given muscle relaxers. However, this treatment is inconsistent with the other evidence. First, service treatment records do not convey that the Veteran complained of or sought treatment for back pain or any other back problem during training at Camp Pendleton or otherwise. These records second reveal that he denied ever having or now having back pain when he separated from service. The ever having portion of this denial would include when he was training at Camp Pendleton. It is more probative than his recount to the contrary, made in connection with this claim. Contemporaneous evidence has greater probative value than subsequently reported history. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran’s separation examination addressed his condition at that time whereas his claim recount concerns his condition over 40 years earlier. He further reported several problems, one of which was even musculoskeletal (foot trouble), at his separation examination. This shows that he did not deny problems for some reason when they actually were present. That the Veteran’s recount of back pain, and thus presumably a back injury, during service was made only after he filed this claim finally is notable. Indeed, the first indication in this regard is his October 2016 notice of disagreement (NOD) challenging the determination in the November 2015 rating decision to deny service connection. An April 2018 VA treatment record as well as his September 2019 hearing testimony reiterated the recount. Yet VA treatment records dated prior to his July 2015 claim and October 2016 NOD, even those that concern back pain, do not mention his recounted in-service back injury or anything else like it during service. Failing to bring up such an injury notwithstanding receiving treatment for back pain until after filing a relevant claim and receiving an initial denial raises the question of the Veteran’s interest. The timing suggests financial gain as a motivation, as granting service connection often results in increased compensation benefits and is more likely if an in-service injury is established. The Veteran’s recount of carrying 106 recoilless rifle barrels during service, in sum, is credible. However, his recount that doing so caused back pain/a back injury for which he received treatment is not credible. Post-service, the Veteran reports having continuous back pain. There are no private treatment records concerning his back. This corresponds with his hearing testimony that none are available from the now-deceased family physician he saw for back pain following his separation and that he thereafter did not seek treatment due to a lack of insurance and finances to pay for it. Regarding VA treatment, an October 2007 record notes that the Veteran was a new patient. He complained of impaired/blurry vision, a pinched nerve in his right arm, and hypertension. The first reference to back pain was not until October 2009. All indications are that this reference is erroneous, however. The Veteran’s past history indeed does not include any diagnosis of a back condition. Prior treatment records further all concern his neck, not his back. The next reference to back pain finally did not come until January 2011, when he denied back pain. Later that month, he complained of back pain due to lying flat after surgery. A July 2014 complaint of pain radiating up his back resulted in a diagnosis of pilonidal cyst. That chronic back pain and underlying arthritis/degenerative diagnoses began with an August 2014 VA treatment record is reiterated. In sum, the gap between the Veteran’s separation and first documentation of his currently diagnosed disability (not erroneous or attributable to surgery or a cyst) is over 38 years. The Veteran is competent to report continuous back pain ever since service. Layno, 6 Vet. App. at 469-470. The JMPR directed the Board to consider the credibility of his report. It cannot be deemed not credible merely because there is an absence of documented treatment for back pain since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006). A proper foundation first is necessary to demonstrate that such absence “has a tendency to prove or disprove a relevant fact.” Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). Typically, this means showing that the fact ordinarily would have been recorded if present. AZ v. Shinseki, 731 F.3d 1303, 1315-1316 (Fed. Cir. 2013); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Despite seeking VA treatment as early as October 2007, it was not until nearly seven years later in August 2014 that the Veteran complained of chronic back pain (not acute from surgery or a cyst). He explains this by noting that he put off complaining about his back pain because his eye issues were more pressing. This is inconsistent with VA treatment records, however. While they confirm that he complained of impaired/blurry vision as a new patient, he also complained of other problems at that time. He was not so preoccupied by his eyes that he did not bring up additional issues, in other words. Yet back pain was not one of the Veteran’s other complaints. He did not complain about his back in the years that followed, despite assessment and treatment for other musculoskeletal issues (neck, left ankle/calf, left knee). Rather, he specifically denied back pain on one occasion in January 2011. This strongly suggests that he was not experiencing it then. Indeed, patients are motivated to tell the truth to medical professionals in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The aforementioned tends to prove that the Veteran was not experiencing back pain, at least from October 2007 to August 2014, because it would have been recorded if present in the circumstances. Additionally, the timing of his report of continuous back pain ever since service once again is notable. The first indication in this regard is an April 2018 VA treatment record, in which he noted back pain for 45 years. This was reiterated at his September 2019 hearing testimony. Yet VA treatment records dated prior to these occasions, even those concerning back pain, do not convey that it was continuous since service or even of long-standing duration otherwise. Receiving treatment for back pain but failing to bring up its longevity until after filing a relevant claim and receiving an initial denial raises the question of the Veteran’s interest. It suggests financial gain as a motivation, as granting service connection often results in increased compensation benefits and is more likely if continuous back pain is established. The Veteran’s report of such ever since service, in sum, is not credible. Even if the Veteran’s report of continuous back pain ever since service was credible, he is not competent to attribute it to his currently diagnosed back disability. Jandreau v. Nicholson, 492 F.3d 1372, n.4 (Fed. Cir. 2007). Such a determination is medically complex. Knowledge of the musculoskeletal system in general and various diagnoses like arthritis in specific indeed is required. Diagnosing arthritis also typically requires the ability to interpret X-rays or similar, as noted above. There is no indication that the Veteran has any sort of medical background which may have imparted him with this knowledge or ability. As the JMPR emphasizes, arthritis during service is not required in order to grant service connection. 38 C.F.R. § 3.303(d) indeed allows for a post-service diagnosis if there was incurrence during service. Such is not established here, however. Neither is a nexus to service otherwise. The JMPR states that the Veteran did not provide an opinion in this latter regard. To the extent he has done so in the former regard, he is not competent for the same reasons he is not competent to attribute his back pain to his currently diagnosed back arthritis. There further are no medical opinions, which would be competent, addressing whether the Veteran’s currently diagnosed back arthritis was incurred during his service or has a nexus to his service otherwise. The JMPR lastly directed the Board to determine if a VA medical examination complete with a medical opinion is necessary. A VA medical examination or opinion is necessary when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence of an event, injury, or disease during service or of a qualifying disease or symptoms thereof during an applicable presumptive period (assuming the Veteran has the service and any other prerequisites for presumptive service connection), and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the service, but (4) insufficient competent medical evidence to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As the Veteran undisputedly has a current back disability, this first criterion is satisfied. The second criterion is not satisfied, however, given the determination herein that his recount of back pain/a back injury caused by carrying 106 recoilless rifle barrels during service is not credible. Neither is the third criterion. This is despite it establishing a low threshold. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The types of evidence that indicate a potential nexus to service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision and credible evidence of continuity of symptoms capable of lay observation, such as pain. Id. As noted above, there is no medical evidence addressing nexus here. Continuous back pain ever since service is something the Veteran is capable of observing, even as a lay or non-medical person. He is competent to recount it, in other words. Yet it was determined herein that he was not credible in recounting it. Two of the first three criteria for obtaining a VA medical examination and opinion, in sum, are not met. This renders it unnecessary to proceed to consideration of the fourth criterion before determining that neither a VA medical examination nor a VA medical opinion is necessary to adjudicate the Veteran’s claim. Unlike in the Board’s December 2019 decision, no reliance is placed on caselaw (Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); Duenas v. Principi, 18 Vet. App. 512, 519 (2004)) holding that a claimant’s statements alone are an insufficient basis to trigger obtaining such an examination and/or opinion in making this determination. It rather is based simply on the fact that the criteria for obtaining a VA medical examination and opinion are not met. Nothing remains for consideration. Since the preponderance of the evidence is against service connection, whether presumptively or directly, the Veteran’s claim is denied. Neck, Right Arm, and Left Arm Disabilities The Veteran contends that he has a current neck disability as a result of his back disability. Specifically, he states that his arthritis spread from his back to his neck. The Veteran also contends that he has disabilities of the right shoulder and the left shoulder, which he describes as nerve problems in his arms in general or elbows in specific, as a result of his back disability. In the alternative, he contends that these disabilities are a result of his neck disability. These contentions are based on what physicians have told the Veteran. The exact mechanism of the relationships between his shoulder disabilities and his back disability or neck disability accordingly have not been explained. His representative states, however, that years of overcompensating for his back damaged his neck and shoulders. When the Veteran filed his claim, he indicated that he was seeking service connection for his shoulders. The November 2015 rating decision and the Board’s December 2019 decision accordingly considered service connection for a right shoulder disability and a left shoulder disability. A claimant lacking a medical background is not expected to identify a precise diagnosis in filing a claim, however. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Referring to a body part of system that is disabled or describing symptoms of the disability is sufficient. Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). In the Veteran’s October 2016 NOD, his only notation concerning his claimed shoulder disabilities was that he had pinched nerves of the left elbow. His representative indicated at the subsequent hearing that he was really talking about nerve problems in claiming these disabilities. There finally are many treatment records documenting problems with the nerves in the Veteran’s arms, in comparison to only a few documenting left shoulder problems and none documenting right shoulder problems. Recharacterization of the Veteran’s claimed right and left shoulder issues more broadly as issues of the right and left arms, in sum, is appropriate because it more accurately describes the disabilities he has described. It is undisputed that he has current right arm, left arm, as well as neck disabilities. For the right arm, 2007 private and VA treatment records diagnosed right cubital tunnel syndrome following his complaints of a pinched nerve in his elbow and numbness with tingling in some fingers. April 2008 VA treatment records reflect that the Veteran underwent surgery (decompression of the ulnar nerve) for this condition, which makes his current disability right cubital tunnel syndrome status post surgery. For the left arm, September 2008 VA treatment records show that he complaint of left arm pain from his shoulder down to his elbow. Left shoulder pain was diagnosed, as was underlying acromial clavicular degenerative changes following X-rays. Degenerative arthritis, once present, does not disappear. It indeed involves a progressive wearing down of apposing joint surfaces. Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992). The aforementioned X-rays accordingly are sufficient to establish a current left arm disability, even though they were taken years prior to the Veteran filing his claim. Additionally, a VA treatment records link his left arm to his neck. Cervical degenerative joint disease (DJD) with left arm symptoms indeed was noted in October 2008, while his left arm pain was diagnosed as cervical radiculopathy in January 2009. Cervical degenerative disc disease (DDD) with left sensory neuropathy versus ulnar nerve entrapment at the elbow lastly were suggested as possible diagnoses in July 2015. For the Veteran’s neck, these diagnoses are coupled with VA treatment record diagnoses of cervical spondylosis and stenosis made following X-rays and a MRI scan in September and October 2008 seeking a cause for his complaints of pain. Each diagnosis was repeated in more recent VA treatment records, many also following X-rays and MRI scans, dated just before he filed his claim or during its pendency. This corresponds with the fact that degenerative arthritis does not disappear once present. Starting with service connection as secondary to a back disability, denial as a matter of law is warranted. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service connection for a back disability was denied above. It therefore cannot serve as the basis for granting service connection for a neck disability, a right arm disability, or a left arm disability, even if it did cause or aggravate beyond natural progression one or more of these disabilities. Service connection for a neck disability first must be granted before consideration of service connection for right and left arm disabilities as secondary to it. However, neither presumptive service connection nor direct service connection is warranted for it. This also is true for a right arm disability as well as a left arm disability. No chronic disease has been diagnosed relevant to the Veteran’s right arm. He was not diagnosed with neck or left shoulder arthritis within his first post-service year, and there is nothing upon which to conclude he had it then even though it was not diagnosed. Indeed, he has not even asserted having left arm or cervical pain then. (Continued on the next page)   The Veteran does not recount an in-service neck, right arm, or left arm injury or disease. His service treatment records are silent in this regard. Indeed, they do not reflect that he ever complained of or received treatment for any kind of neck, right arm, or left arm problem. He additionally specifically denied ever having or now having a painful or “trick” shoulder or elbow as well as bone, joint, or other deformity and arthritis, rheumatic, or bursitis at his June 1976 separation examination. His spine and upper extremities were found to be normal at that time. Overall, the Veteran related being in good health and not taking any medication. He next does not recount any continuous symptoms, whether pain or otherwise, ever since service. A June 2007 private treatment record instead documents his denial of neck and shoulder pain as well as left arm radicular symptoms, while an April 2018 VA treatment record contains his report of neck pain that developed only 13 years prior. That equates to 2005, or approximately 29 years after his separation from service. The Veteran has not provided an opinion that any of his neck, left arm, or right arm disabilities diagnosed after service were incurred during his service or have a nexus to his service otherwise. There further are no medical opinions in either regard. Neither a VA medical examination nor a VA medical opinion is necessary to adjudicate his claims because the criteria for obtaining one or both are not met. Like above with a back disability, only the first criterion for doing so of a current disability has been met for each claim. Yet there is no evidence of an in-service event, injury, or disease or a disease during the first post-service year. There also is no indication that any current disability may be associated with the Veteran’s service or with a service-connected disability. 38 C.F.R. § 3.159(c)(4). Nothing remains for consideration. Indeed, the JMPR did not include any directives about what to consider in adjudicating the Veteran’s neck, right arm, and left arm claims. They are denied because the preponderance of the evidence is against service connection, whether secondarily, presumptively, or directly. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.