Citation Nr: 21032135 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-15 047A DATE: May 25, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a neck disability, to include as due to lumbar strain, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right shoulder disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a left shoulder disability 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 a neck disability began during active service, is otherwise related to an in-service injury or disease, or is proximately due to service-connected lumbar strain. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 1, 2004 to July 21, 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in May 2019 and March 2020. The claims were remanded in May 2019 so that the Veteran could be afforded VA examinations. The claims were remanded again in March 2020 for addendum medical opinions. The Veteran is in receipt of a schedular 100 percent rating for posttraumatic stress disorder, effective July 9, 2014. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran did not serve for at least 90 days, as such presumptive service connection is not applicable. Additionally, the evidence of record does not include a diagnosis of arthritis to a compensable degree within one year of discharge from service. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Walker did not specify if a veteran's service had to meet the requirements of 3.307 in order to be applicable; however, as it referred to the chronic conditions listed in 3.309, it would stand that the 90 day service requirement would also attach for establishing service connection for continuity of symptomatology. Here, the Veteran's report of continuity of symptomatology can be rebutted, as addressed below. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right shoulder disability is denied. 2. Entitlement to service connection for a left shoulder disability is denied. 3. Entitlement to service connection for a neck disability, to include as due to lumbar strain, is denied. The Veteran contends that he has current bilateral shoulder and cervical spine (neck) disabilities as a result of a physical assault in service by a drill instructor. Alternatively, he argues that his neck disability is caused or aggravated by his service-connected lumbar strain. A review of service treatment records shows that the Veteran entered service in sound condition as related to his shoulders and neck. See September 2003 Entrance Medical Examination and Medical History. On June 10, 2004, the Veteran reported right wrist pain for one day. He stated he was doing push-ups inside squad bay for a drill instructor (DI). When he was unable to continue, the DI pushed him from side to side, then lifted his upper body from the ground and dropped him toward the right side. He impacted deck on his right hand (FOOSH [fall on outstretched hand]). He noted that the wrist pain did not radiate. On June 19, 2004, the Veteran reported continued right wrist pain for 10 days. He also reported low back pain for 10 days. He was assessed with rule out distal radial fracture of the wrist and mechanical low back pain. On June 24, 2004, the Veteran was seen for complaints of congestion and headache for three days. He had a full range of motion of his neck, with no complaints related to his neck listed. A June 29, 2004 Sports Medicine record included the Veteran's continued complaint of right wrist pain for the past two weeks. He had "no further complaints." After physical evaluation, he was assessed with rule out scaphoid fracture. The service treatment records contain a July 12, 2004 psychiatric evaluation wherein the Veteran was diagnosed with an acute stress disorder after a formal allegation against a drill instructor after he was physically abused and threatened with death. He also needed to be seen for a possible wrist fracture. He was granted a "Convenience of the Government" discharge due to his diagnosis. The DI was noted to be under investigation. A July 13, 2004 Sports Medicine record included the Veteran's report of being pain-free for 4 weeks. He was assessed with resolved right wrist pain. The Veteran's separation medical examination noted the injury to the right wrist injury. He had a normal evaluation of his spine (cervical, thoracic, and lumbar). His shoulders were not addressed in the examination. Following separation, the Veteran filed a claim for service connection benefits on July 26, 2004. He sought service-connection for his right wrist, right index finger, and stress disorder. He did not seek benefits for neck or shoulder symptoms. On December 21, 2004, the Veteran participated in a VA joints/spine examination due to his claimed wrist disability. He reported he was abused by a DI, who kicked his right hand, and he had continued wrist pain. He did not report other joint or spine pain to the examiner. On November 4, 2010, the Veteran filed claims for service connection for PTSD, bilateral carpal tunnel syndrome, sinusitis, right index finger fracture, and an ear condition. He did not seek service connection for shoulder or neck symptoms. On July 9, 2014, the Veteran filed claims for service connection for a low back disability, PTSD, right wrist disability, bilateral carpal tunnel syndrome, an ear disorder, and sinusitis. He did not seek service connection for shoulder or neck symptoms. On April 4, 2015, the Veteran was seen in a VA emergency room for acute low back pain for 3 days after bending over. He denied neck stiffness during evaluation. An April 29, 2015 primary care physician initial evaluation included the Veteran's report of low back pain since an assault in service in 2004. He had a recent acute exacerbation of his back pain for which he was seen in the ER. He also had "cervical pain." On physical evaluation he was tender on the back and neck, with difficulty ambulating. On May 15, 2015, the Veteran was seen for interview and physical evaluation in conjunction with his request for vocational rehabilitation services. He was service-connected for his low back disability at this time. He reported strong back pain that was controlled with analgesics, but that he continued to have some limitations due to his back. Also on May 15, 2015, the Veteran was seen for a psychiatric evaluation. He reported a history of multiple medical conditions including chronic low back pain, neck pain, left shoulder pain, and carpal tunnel syndrome. He reported a pain level of 1 out of 10. The Board notes that he singularly reported left shoulder pain at this time. On September 4, 2015, the Veteran complained to a primary care physician of low back pain, neck pain, bilateral shoulder pain, and right elbow pain. He was assessed with apparent bursitis, elbow tendonitis, and cervical pain. A January 21, 2016 VA psychiatric progress note included the Veteran's complaint of chronic low back pain, neck pain, left shoulder pain, and bilateral carpal tunnel syndrome. On January 25, 2016, the Veteran finally submitted claims of entitlement to service connection for bilateral shoulder and neck disabilities. A February 29, 2016 rheumatology consultation note included the Veteran's complaint of bilateral shoulder and right elbow pain that had been present for more than 5 years. He was assessed with mild degenerative joint disease. During a May 18, 2016 VA back examination, the Veteran did not report pain related to his neck, radiation up his spine from his low back, or upper extremity symptoms. On May 9, 2017, the Veteran complained of "severe and very limiting pain that is decreasing the range of motion, he cannot elevate the arm, suspected rotator cuff tear. An open MRI was requested. The "severe exquisite pain started last week, about 5 days ago he could not sleep due to severe pain with radiation to arm." Work-up was slowed due to difficulties with obtaining laboratories as the Veteran was homeless. A June 19, 2017 primary care record showed the Veteran was referred for right shoulder pain for more than 3 months. The impression was of right shoulder mild degenerative joint disease that "did not explain the pain, tendinitis was likely." An October 24, 2017 record included that a recent MRI had shown tendinitis and a partial tear of the rotator cuff, with degenerative joint disease changes in the acromial joint causing mild impingement syndrome, and type I SLAP lesion in the superior labrum. On November 6, 2017, the Veteran submitted an affidavit describing his in-service assault and arguing for entitlement to several disabilities. He stated he was "doing push-ups, when the DI pushed [him] down, picked [him] up, and threw [him] on the ground." He landed on his right side and hurt his wrist, arm, neck, and back. The Board notes that the Veteran's report of the DI's physical abuse and threats are contained in the service treatment records, and were listed as part of his diagnosed stress condition and the reason for his early discharge from service. The Veteran initially tried to get treatment at the San Juan VAMC, but he was turned away and told to go to other public facilities. He received help through a Medicaid program (referring to secluding himself/psychiatric symptoms) many years after discharge. Post-service he worked at an airport "loading and unloading small, non-heavy boxes" for less than a year. He then had odd jobs afterwards. He struggled to keep employment because he did not like to be around people. During a September 9, 2019 VA back examination, the Veteran reported constant back pain that occasionally radiated to his right leg. He did not mention radiation of pain up his back, neck pain, or upper extremity symptoms. On September 11, 2019, the Veteran participated in VA shoulder and neck examinations. The examiner diagnosed bilateral shoulder impingement syndrome and degenerative arthritis. The Veteran reported bilateral shoulder pain since 2004. A September 2015 imaging was cited as showing mild bilateral acromioclavicular degenerative osteoarthritis. The examiner provided a negative direct nexus opinion for the Veteran's shoulder disabilities with the rationale that the Veteran's service treatment records did not show evidence of shoulder symptoms during service, and he was diagnosed "several years after service." The Veteran was diagnosed with cervical strain and cervical myositis during the September 2019 examination. He reported "constant neck pain, pain intensity 7/10" since 2004. He reported flare ups of severe pain resulting in difficulty moving his neck. He had limitation of motion, pain with motion, and cervical spasm. An April 2016 imaging was noted to show straightening of the cervical lordosis which could be positional or related to spasm. No other abnormalities. The examiner provided a negative direct nexus opinion with the rational that the Veteran was in service from June 1 to July 21, 2004 and his current cervical condition was diagnosed in 2016. The Board notes that the medical opinions provided in the 2019 examinations were inadequate, and the claims were remanded for additional examination and opinion. The opinions were inadequate because they did not address the Veteran's contention that his neck and shoulder disabilities were due to his in-service assault or his secondary service-connection argument related to his neck disability. On November 18, 2020, the Veteran participated in additional shoulder and neck examinations. The examiner diagnosed bilateral AC joint osteoarthritis of the shoulders with an initial diagnosis date in 2015, and bilateral shoulder impingement syndrome initially diagnosed in 2019. The Veteran reported that during active duty service in 2004 a drill instructor physically attacked the Veteran and he "injured his shoulder at the time" with bilateral shoulder pain (right worse than left) since the injury. He had decreased range of motion of both shoulders and positive impingement (empty can and Hawkins) tests. September 2015 x-rays showed mild bilateral AC degenerative osteoarthritis. The examiner provided negative nexus opinions regarding the Veteran's bilateral shoulder claims. The examiner reviewed the medical records and found that the Veteran's acromioclavicular joint osteoarthritis and bilateral shoulder impingement syndrome that were due to the normal aging process. It was "well-known in medical literature that bilateral acromioclavicular joint osteoarthritis and shoulder impingement syndrome are related to the normal aging process due to wear and tear of the joint." Regarding the Veteran's argument that his shoulder disabilities were due to his assault in service, the examiner noted that although the Veteran stated he injured his shoulders when he was thrown to the ground by his drill instructor, there were no medical records from discharge in 2004 related to his shoulder that would have indicated chronicity of care or complaints. He was evaluated by VA in 2015 for shoulder pain, "years after his discharge from service." The examiner noted that the Veteran's lay statement of being thrown to the ground in 2004 was not sufficient to connect his current shoulder conditions to service. In the November 2020 neck examination report, the Veteran was diagnosed with cervical strain, with an initial diagnosis date in 2016. The Veteran reported neck pain onset in service in 2004, when he was physically attacked by a drill instructor. He alleged is neck was injured at the time of the assault and he had continued with neck pain since. The pain was localized sharp pain without radiation. On examination, he had decreased range of motion and mild tenderness to the cervical paracentral muscles. An April 2016 x-ray was cited as showing "straightening of the cervical lordosis which could be position or related to spasm. Otherwise, no abnormalities." The examiner reviewed the medical record and provided negative nexus opinions. The examiner noted that the Veteran's cervical strain was "muscular in nature, which correlates with cervical x-ray done on April 28, 2016," and is less likely than not related to service. Although the Veteran was thrown to the ground by his drill instructor, and states he injured his neck, there were no other medical records after his discharge from July 2004 until he was seen for neck pain in 2015. "In lieu of evidence to support chronicity of the condition, the Veteran's lay statement from [2015] is not sufficient to connect the current condition to service." The examiner also found that his cervical strain was not aggravated beyond its natural progression by his lumbar spine condition. "By definition, [the] Veteran's cervical condition and lumbar conditions have different anatomical sites with different pathophysiological process." In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board finds the Veteran's statements regarding continuity of symptoms from the 2004 assault onward to be less than credible. The Veteran was assaulted in service, described in service treatment records as being picked up and thrown back down while in a push-up condition and suffering a FOOSH-type injury to his right wrist. Service treatment records included complaints of right wrist pain, low back pain, sinus symptoms, and headaches. Service treatment records did not include complaint of right shoulder, left shoulder, or neck symptoms. Post-service the Veteran initially claimed service connection for his right wrist/hand and stress reaction. Over the years, he additionally claimed service connection for sinus, ear, low back, bilateral carpal tunnel syndrome, and right wrist and finger disabilities. He did not file a claim of entitlement to service connection for bilateral shoulder and neck disabilities until 2016. When he initially sought VA treatment in 2015, he reported low back pain only. Then he reported neck pain, and subsequently left shoulder and neck pain. Following a right rotator cuff injury, the Veteran reported bilateral shoulder pain. Although he reported that he had bilateral shoulder and neck symptoms continuously from 2004 assault to the present, the Board finds these statements less than credible based on the foregoing. The medical evidence of record consists of negative nexus opinions related to the Veteran's shoulder and neck disabilities. In December 2017, the Veteran's representative submitted a positive medical opinion from Dr. A.A. relating the Veteran's current right wrist symptoms to his in-service injury. The statement from Dr. A.A. included the Veteran's report of neck and bilateral shoulder disabilities related to the 2004 assault; however, Dr. A.A. specifically limited her positive opinion to the Veteran's current right wrist disability only. Additionally, the 2020 VA examiner found that the Veteran's bilateral shoulder disabilities were due to the natural aging process and his neck disability was muscular in nature and not related to the distant assault or his low back disability, which was a "different pathophysiological process." The Board additionally notes that the Veteran initially complained to VA care providers of left shoulder pain only, which was not the side the Veteran landed on in the assault. He later complained of right shoulder symptoms following a rotator cuff injury. Although the Veteran has reported that he has bilateral shoulder and neck disabilities from service, his service treatment records do not show complaints or treatment for his shoulders or neck despite his frequent interaction with medical professionals in service wherein he would have easily reported all symptoms/complaints. He also reported work as a luggage handler for a brief period post-service, reported to vocational rehabilitation that his limitations were due to his low back (with no mention of neck or shoulder limitations), and that he had a limited employment history due to psychiatric symptoms. Overall, the preponderance of the credible lay and medical evidence is against find that the Veteran has bilateral shoulder or neck disabilities due to service or a service-connected disability. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, 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.