Citation Nr: 21027089 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-02 128 DATE: May 4, 2021 ORDER Service connection for residuals from a head injury is denied. Service connection for a headache disorder is denied. Service connection for a lumbar spine disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for a bilateral shoulder disorder is denied. Service connection for a bilateral knee disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has or has had at any time during the appeal a current diagnosis of residuals of a head injury (TBI). 2. A headache disorder was not manifest during service and is not related to service. 3. A lumbar spine disorder, a cervical spine disorder, a bilateral shoulder disorder, or a bilateral knee disorder was not manifest in service, arthritis was not manifest within one year of separation from service, and these conditions were not otherwise caused by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a bilateral shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to April 1975, including during the Vietnam era. Previously, the claims were before the Board in October 2018 and were remanded for additional development. The directives having been substantially complied with the matter again is before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. 2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic" " When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Service Evidence The Veteran's service treatment records (STR's) are associated with the claims file. In a May 1971 report of medical enlistment examination, the clinical evaluation revealed an abnormality to the Veteran's upper extremities. The Veteran indicated that he had swollen or painful joints, cramps in his legs, and back trouble of any kind. In August 1971 STR, he complained of severe headaches. He was also seen after twisting his neck. In June 1972, he complained of lower back pain after hitting his back on a stool. The clinician indicated that the Veteran had a contusion in his midback over his spine, swelling, muscle strain. In August 1972, he complained of back pain on two separate occasions and complained of a headache. In a January 1973, he was seen after reporting an accident. An x-ray showed no fractures. However, he had a head wound that was cleaned, closed, and stitched up. He also had a left face contusion, a left shoulder contusion, and an injury to his scalp. Later in the month he was seen again and was doing much better. In January 1973, he was struck in the back of the head by an empty cable spool thrown from a flight deck. He had his wound cleansed and sutured. The medical officer noted that the injury "may not" result in a permanent injury. In January 1974, he seen for a cold and reported a headache. In April 1974, he was seen for back pain. In March 1975, he was seen for a headache. At an April 1975 report of medical separation examination, a clinical evaluation revealed the Veteran had a normal examination of his lower extremities, upper extremities, spine, other musculoskeletal, and head, face, neck and scalp. Traumatic Brain Injury (TBI) and Headaches In May 2015, the Veteran was given a traumatic brain injury VA examination. The examiner indicated that the Veteran did not have and never had a TBI or residuals of a TBI. The Veteran reported that while in-service, while he was getting some fresh air, someone dropped a wooden spool from the flight deck and it hit the top of his head, busting his head open and causing his shoulders to swell. The examiner stated that the Veteran had a pretty good memory of events and there was no evidence of loss of consciousness or an alteration of consciousness. The Veteran reported that his memory slipped once in a while and he was unable to state when his memory issues began happening. The examiner indicated the Veteran did not have any residuals of a TBI and a TBI did not impact his ability to work. The examiner also stated there was no evidence that the Veteran lost consciousness, had an altered consciousness or any neurological deficits. The examiner opined that the Veteran did not have a diagnosis of a TBI that was at least as likely as not due to his active service. The examiner reported that there was no evidence in the Veteran's STR's that the Veteran loss consciousness or had confusion following the incident. In addition, the examiner reported that the Veteran reported headaches after the incident that continued to occur frequently, one to two times a week. However, the examiner reported that the Veteran's STR's revealed headache and dizziness complaints prior to the incident. The examiner further reported that although the Veteran reported that he had difficulty remembering things after the incident, but it was not documented in the Veteran's STR's. The examiner reported that following the incident in January 1973, the Veteran reported that he did ok with the remainder of service but had difficulty concentrating on test taking. The examiner noted that after service, the Veteran was able to complete education at a career center leading to his GED in 1978. He examiner noted that the Veteran was employed doing painting, maintenance work, as a plumber's helper, worked for a paper company for 13 years, and worked as a stocker at Wal-Mart before he was incarcerated for 3-1/2 years. The Veteran reported that he had been depressed but it was related to being incarcerated and indicated that he had difficulty with memory and forgetfulness but that occurred within those last 10 to 15 years long after the accident in 1973. In addition, the examiner stated that there was no evidence of significant cognitive deficits because the Veteran was able to remember the president's name, previous presidents and carry on a coherent conversation with good memory of past events and recent event. On the same day, the Veteran was afforded a VA headaches examination. The examiner noted that the Veteran had a diagnosis of tension headaches, which was diagnosed in May 2015. The Veteran reported "real bad headaches" that would come and go and were located on the left side of his head. The Veteran also stated that the pain was "real sharp" and the headaches lasted about 15 minutes. The examiner found that the Veteran's tension headaches were not caused by or a result of the reel accident in-service, because there was no evidence in the STRs of headaches at the time of the injury or within a year of the injury. The Board acknowledges that was incorrect because the Veteran was seen after the accident for a head injury and was seen twice again in 1974 and 1975 for headaches. But it appeared as though the Veteran's headaches during those visits were related to sinus issues and a cold, not the 1973 accident. In a June 2015 statement, the Veteran reported that he believed the residuals from his head injury in-service, which included headaches, memory problems and personality changes, were related to his service injury and had become worse over time. The Veteran reported that he was treated in-service for the injury and did not know why the information was not of record. The Veteran stated that he was treated in a North Carolina hospital for headaches and for short- and long-term memory problems. The Veteran also reported that he began having anger management issues after the injury, which he did not have before. See June 2015 Correspondence. A review of the Veteran's post-service medical records does not show any treatment, diagnosis or complaints of a post-service TBI or residuals of a TBI. The first instance of the Veteran claiming residuals of a TBI came in February 2015 with the Veteran's claim of service connection. The Board affords significant probative weight to the findings of the March 2015 VA examination as the examiner conducted an in-person examination, reviewed the medical records, took into consideration the Veteran's lay statements, and provided a rationale supported by the record. The Board recognizes that the Veteran believes that he has residuals of a TBI and headaches related to his in-service accident. However, the Veteran has not been shown to be competent to make that medical determination, which is medical in nature. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Such an opinion requires specialized training and knowledge. Given that there is no competent evidence that the Veteran has a current disability of TBI or that any mild or exaggerated symptoms are caused by events in service, the claim of service connection for TBI must be denied. The Board finds the VA examination and medical evidence which were based on the examiner's medical expertise and well-reasoned rationale to be more probative and credible than the lay opinions of record. In particular the March 2015 VA examination was based on the examiner's medical expertise and provided a well-reasoned rational and as a result is entitled to significant probative weight. The VA examiner noted the Veteran did have a diagnosis of tension headaches. However, the Veteran was not diagnosed until May 2015 with tension headaches, many years after service. The Board notes that service treatment records note the Veteran was seen before and after the January 1973 incident for headaches. However, on an April 1975 report of medical examination evaluation of the head and neurologic system was normal, and there was no indication made by the Veteran that he suffered from frequent or severe headaches and dizziness. This normal finding is inconsistent with ongoing manifestations of pathology. The Board finds the Veteran's and associated lay statements are outweighed by the March 2015 examiner's opinion, as this credible probative opinion is entitled to significant weight and weighs against the claim. As such service connection is not warranted. VA treatment records associated with the claims file do not contradict the VA examination and are absent indications of a relationship between the Veteran's headaches and service. While the Veteran's lay statements report his current symptoms are a result of an in-service injury the Board finds his statements are outweighed by the clinical evidence of record. As such service connection is not warranted. The preponderance of the evidence is against the claims, and therefore the claims are denied. Lumbar Spine Disorder and Cervical Spine Disorder In August 2000, a clinician indicated that the Veteran was healthy except for cervical disc disease that was documented in a CT around 1999. The Veteran was diagnosed with chronic low back pain and chronic neck pain from degenerative disc disease. The clinician further noted that the Veteran had occasional low back pain and left shoulder pain from bursitis. In January 2003 VA, a clinician noted that the Veteran had fallen on some ice onto some stairs the previous day. In addition, the clinician noted that the Veteran had a history of chronic back pain with a previous injury while working at Wal-Mart. The Veteran reported the previous injury was treated by a private physician. In May 2015, the Veteran was afforded a VA examination for his cervical spine disorder. The examiner noted a diagnosis of degenerative arthritis of the cervical spine, which was diagnosed in 2000. The Veteran reported that he began having problems with his neck right after he was hit in-service. He stated his neck stiffened up, along with his back. The Veteran did not use any assistive devices and the condition did not impact his ability to work. The examiner found that degenerative disc disease of the cervical spine was not due to or the result of the reel accident in service, because there was no evidence of a neck injury in service following the accident and no evidence of chronic neck pain secondary to the injury or military service. Also, there was no evidence of a neck injury at discharge and no records indicating an injury from 1975 to 2000. On the same day, the Veteran was afforded a VA examination for his lumbar spine disorder. The examiner reviewed the claims file; considered the subjective accounts and conducted an evaluation. The examiner indicated the Veteran had a diagnosis of degenerative arthritis of the lumbar spine, which was diagnosed in 2003. The Veteran reported that his lower back became sore and stiff after he was hit in the head, while in-service. The Veteran reported pain in the lower back, denied mid-back pain and that the pain was constant. The Veteran stated that it was hard to get out of bed in the morning, that he had a lot of soreness and stiffness but had no radicular symptoms. The examiner indicated that the Veteran's back condition impacted his ability to work, because he was limited in doing physically demanding tasks due to the pain. The examiner found that the Veteran's lumbar spine condition was not caused by or a result of the reel accident in service; because there was no evidence of a back or chronic back injury when the Veteran was in-service. The examiner noted that the Veteran was treated for acute pain in service, but it was not related to the incident and there was no evidence of chronic residuals. Also, there was no evidence of record between 1975 to 2000. In June 2015, the Veteran reported he injured his neck in an accident while in-service and had difficulty looking around and had constant pain. The Veteran also stated his lumbar back pain and loss of motion occurred in the same service accident. The Veteran indicated he had difficulty moving his back and had constant pain. After consideration of all the evidence of record the Board finds that the preponderance of the evidence is against fining that service connection for a lumbar spine disorder or a cervical spine disorder are warranted. The Board concludes that service connection is not warranted as the Veteran's current lumbar and cervical spine arthritis are not related to service. The Veteran's statements regarding his current symptoms and in-service events are credible. While the Veteran reports that his current symptoms and in-service events are related the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau, 492 F.3d 1372, 1377 n.4. The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The Board accepts the Veteran's report that in January 1973 while he was getting some fresh air on the flight deck, he had an accident where he was hit in the head by a reel. Although he reported treatment, and he had follow-up treatment for residual pain or loss of function; there was no mention of a serious spinal injury during any treatment for low back or quadrant pain, neck pain, or in any discharge physical examination records. The Board gives more probative weight to the competent medical evidence specifically the May 2015 VA examinations. The VA examiner found that the lumbar spine disorder and cervical spine disorder were not due to or the result of the in-service reel accident. The examiner found the cervical spine disability was not related to service because there was no evidence of a neck injury in service following the accident, no evidence of chronic neck pain secondary to the injury or military service, no evidence of a neck injury at discharge, and no records indicating an injury from 1975 to 2000. In addition, the examiner found that there was no evidence of a back or chronic back injury when the Veteran was in-service. The Board finds that service connection is not warranted as the Veteran's current degenerative arthritis of the cervical spine or lumbar spine since there is no evidence of record linking the current conditions to service. Further, the Board notes that the clinical examination at separation in April 1975 lower extremities, upper extremities, spine, other musculoskeletal and neck were normal. The Board has considered the Veteran's lay statements however, the Board give more probative weight to the competent medical evidence specifically the May 2015 VA examinations. As such the Board finds that the Veteran's current cervical spine and lumbar spine disabilities are not related to active service. In addition, the Board concludes that, while the Veteran has arthritis of the lumbar spine and cervical spine, which are chronic diseases under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), they were not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Arthritis was not "noted" during service or within one year of separation. See Walker, 708 F.3d 1331. At separation physical in April 1975, clinical evaluation of the upper extremities, lower extremities, neck and musculoskeletal systems were normal. STRs do not support an onset of the Veteran's lumbar spine or cervical spine arthritis during active service. Based on the probative evidence of record the Board finds that the Veteran's lumbar spine and cervical spine arthritis did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. VA treatment records note the Veteran was not diagnosed with lumbar spine and cervical spine arthritis until after 2003, which was almost 30 years after service. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. The preponderance of the evidence is against the claims, and therefore the claims are denied. Bilateral Shoulder Disorder and Bilateral Knee Disorder In August 2009 VA treatment, the Veteran reported that he tripped and fall the previous day onto his left shoulder. He stated he heard a cracking noise when he fell and that his shoulder felt jammed up into his neck. He indicated that movement made the pain worse and he tried to apply ice/ heat with little relief. He was diagnosed with left shoulder arthritis. In May 2009, the Veteran complained of left knee pain. He reported that he twisted his left knee while weed eating at his house. He stated that he heard a "pop" and had knee pain ever since, which was wore with weight bearing. He reported that he had no prior knee problems until that time. The clinician indicated there was no swelling, calf pain, locking up or giving out of the knee. In May 2015, the Veteran was afforded a VA examination for his bilateral shoulder disorder. The examiner noted that the Veteran had a diagnosis of a bilateral rotator cuff tendonitis and bilateral degenerative arthritis. The Veteran reported that he had swelling in his shoulders when he was hit with a reel in-service. He also indicated that he had a hard time getting comfortable to go to sleep due to the shoulder pain and that he had constant pain in both of his shoulders. The examiner opined that the Veteran's bilateral shoulder disorder was not caused by or the result of the reel accident during service; because the Veteran was treated for left shoulder injury that improved and there was no evidence of residuals from the in-service acute left shoulder injury. Also, the examiner stated that there was not a bilateral shoulder condition in service or within a year of service. In a June 2015 correspondence, the Veteran reported that he injured his rotator cuff and shoulders in the same accident. He stated that he was unable to lift up his arms without pain and loss of motion. He indicated that he was unable to perform the work he was trained to do and jobs he previously held. He also reported that his bilateral knee condition occurred from the same accident. He stated he had difficulty with walking, standing, climbing stairs, and had constant pain. After consideration of all the evidence, the Board concludes that the weight of the evidence weighs against finding that any such disabilities began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a),(d). As to the Veteran's bilateral shoulder disorder and bilateral knee disorder, by the time of his April 1975 examination prior to separation from service his upper and lower extremities were normal on examination and the Veteran did not report any ongoing problems with his arms, shoulders or knees. As such, the Board concludes that any injury to the arms, shoulders or knees sustained in-service or during the 1973-reel accident were resolved or acute in nature. As to the etiology of the claimed bilateral shoulder disorder, the Board finds the opinion expressed in the May 2015 VA examination report of significant probative value. The opinion was based on interview and examination of the Veteran and review of the service treatment records and post-service medical records. As to each issue, the examiner concluded that the Veteran's current bilateral shoulder disorder was not related to service, including his documented 1973 accident and claimed injuries. Consequently, the Board finds this report to be the most probative evidence of record as to whether the Veteran's bilateral shoulder disorder was incurred in or are otherwise related to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As to the etiology of the claimed bilateral knee disorder, there is also no competent medical opinion of record which even suggests that the Veteran's bilateral knee disorder even might be related to his active service. As noted above, treatment records show the Veteran did not report nor was he diagnosed with bilateral shoulder or knee arthritis until years after his separation from service. While the Veteran is competent to report having experienced ongoing symptoms related to these joints 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 due to the complexity of attributing symptoms to a specific disability. Jandreau, 492 F.3d 1372, 1377, 1377 n.4. In that regard, the Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as arthritis, specifically listed in 3.309(a). See Walker, 708 F.3d 1331, 1340. However, a bilateral shoulder disorder and a bilateral knee disorder were not "noted" in service or for multiple years after service. In addition, Veteran did not have characteristic manifestations sufficient to identify the disease entity. Given the absence of a continuity of symptomatology from service, as explained above, the Board does not find that service connection is warranted for any of the claimed disabilities based on the above provisions. The preponderance of the evidence is against the claims, and therefore the claims are denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.Long-Ellis, 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.