Citation Nr: 22013364 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-38 894 DATE: March 9, 2022 ORDER Entitlement to service connection for a bilateral shoulder disorder is denied. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for cervical degenerative arthritis and degenerative disc disease (DDD), is granted. REMANDED Entitlement to service connection for a bilateral hip disability is remanded. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran has had a right or left shoulder disability at any time during or approximate to the pendency of the claim. 2. The evidence of record is against finding that the Veteran has had a right or left knee disability at any time during or approximate to the pendency of the claim. 3. The evidence is at least evenly balanced as to whether the Veteran's cervical degenerative arthritis of the spine and DDD are related to her active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral shoulder condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a bilateral knee condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for cervical degenerative arthritis of the spine and DDD are met. 38 U.S.C. §§ 1110, 1112, 1113, 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 September 2014 to April 2015. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A personal hearing was conducted between the Veteran and undersigned in March 2019. A transcript is associated with the record. This matter was most recently remanded in July 2020 for further development. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Entitlement to service connection for a bilateral shoulder disorder 2. Entitlement to service connection for a bilateral knee disorder. Service treatment records confirm treatment for trapezius shoulder muscle spasms in November and December 2014. The Veteran is also deemed competent and credible to report experiencing knee and shoulder pain. However, the primary consideration is whether current disability is established. The persuasive weighs against this aspect of the claim. The totality of the evidence, to include the Veteran's medical treatment records and several VA examinations afforded in April 2018, April 2020, August 2021, are negative for any current knee or shoulder disabilities for service connection purposes at any time during the pendency of the claim or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board recognizes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110. However, the Federal Circuit did not hold that the veteran could demonstrate service connection simply by asserting subjective pain. Rather, to establish a disability, the veteran's pain must amount to a functional impairment. The Federal Circuit held that to establish the presence of a disability, the veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 1363. The Veteran reports suffering from painful symptomatology and decreased range of motion (ROM). The medical record contains conflicting supportive evidence. 2020 knee and shoulder examinations revealed pain and decreased ROM. Comparatively, 2018 and 2021 VA shoulder and knee examination reports were negative for evidence of pain or decreased ROM as well as functional impairment. To address the disparity, a November 2021 VA examiner was specifically tasked with analyzing the Veteran's reported symptomatology in relation to Saunders. Following consideration of the entire record, the 2021 VA examiner opined that claims file/treatment record review did not support diagnosis or reveal symptomatology so severe as to functionally impair earning capacity. The examiner specified that the Veteran's knee and shoulder symptoms do not amount to a functional impairment of earning capacity, and Saunders is not applicable in this case. Beyond record review, the examiner explained that the physical examination did not support that the Veteran's knee and shoulder conditions impacted her earning capacity. The examiner indicated that physical examination was "benign" without even decreased ROM. Moreover, at the time of examination, the Veteran reported working two jobs cleaning homes and as a nanny. Current disability is not established. In Wait v. Wilkie, 33 Vet. App. 8 (2020), the U.S. Court of Appeals for Veterans Claims (Court) provided further guidance on the Saunders test for establishing pain as a disability. The Court found that a disability under Saunders requires competent evidence demonstrating that the symptoms result in functional impairment that in fact affects the veteran's earning capacity. In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. The rating schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive. Id. at 17. Here, the Board finds that the Veteran has not presented any competent evidence that her disability manifested by shoulder and knee pain results in functional impairment that in fact affects her earning capacity. Despite the 2020 examination findings, contemporaneous 2019 and 2020 VA treatment records, are negative for shoulder/knee symptomology meeting the requirements of Wait. To the contrary, these records associate her primary functional impairment as well as her employment impairment/limitations with her lumbar spine pain. 2017 and 2018 private treatment records similarly associate her impaired working ability with either her lumbar or her cervical spine impairment. The Veteran also reported currently engaging in physically strenuous forms of employment at her recent November 2021 VA examination. That examiner did not find abnormalities of the shoulders or knees on physical examination. The combined evidence does not support current VA disability. Accordingly, the Board concludes that the Veteran's disability manifested by pain in the knees and shoulders does not rise to a disability under Saunders and Wait. The Veteran is certainly competent to report her history of bilateral shoulder and knee problems as well as any treatment that she may have undergone. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not presented any competent and credible evidence of a current diagnosis for a left shoulder/knee disability or for a right shoulder/knee disability, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest she has an underlying chronic disability. Accordingly, the Veteran's assertions that she has a current diagnosis for a disability manifested by joint discomfort of the shoulders and knees have little probative value. No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The claims are denied. 3. Entitlement to service connection for a neck disability. The Veteran contends that her degenerative arthritis of the cervical spine is etiologically related to service. The Veteran asserts that she had a small stature in-service and weighed only a 100 pounds. She states that, despite her size, she was required to consistently carry 100 pounds of equipment and gear while engaging in her duties and physical training. The Veteran alleges that this excess weight and strain caused her neck injury and aggravated the condition during service. She indicates experiencing continuous neck pain, both during and since her active service. Current disability is established by way of a July 2021 VA examination which diagnosed cervical degenerative arthritis and intervertebral disc syndrome. The first element of Shedden is met. Further, as arthritis is an enumerated condition under 38 C.F.R. § 3.309(a), service connection via the demonstration of continuity of symptomatology is applicable. Walker, 708 F.3d at 1336. November 2014 service treatment records confirm the Veteran's neck pain started gradually in-service and was "worse with carrying heavy gear, carrying weapon at the ready, [and] moving right arm." Records thereafter, to include March 2015 records, document on-going reports of neck pain and treatment. Service medical records also confirm the Veteran's reports of small stature and being underweight. In that regard, the Veteran was listed as 5'1 and weighing approximately 102 pounds at entrance and exit. At most during service, she weighed 114 pounds. The above meets the second element of Shedden. What remains is nexus. While no treatment records exist during the applicable presumptive period, the Board finds that the Veteran continued to experience the same neck pain and limitation of motion from her discharge in April 2015 to the present. Treatment records within two years of service separation repeatedly indicate that the Veteran experienced on-going neck pain. The Veteran is competent to report that she experienced neck pain and limitation of motion during and since service but did not seek further medical treatment, instead treating her pain with over-the-counter medications and home remedies. She also specifies not seeking VA treatment immediately post service because she did not believe she was eligible. Her statements and hearing testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. S.H., a witness at her hearing, also testified that Veteran has complained of neck pain since service. The Veteran also reported during her varying VA examinations that she continued to have neck pain throughout the remainder of her active service following the in-service injury, and that she had chronic neck pain post-service as well. Finally, the Veteran's private care provider A.S., FNP, indicated in a November 2018 Physician Certification of Medical Accommodation that her neck pain had been present and unabated since service. A.S. specified that the pain was due to injury during basic training. Adjoining treatment records also appear to associate the Veteran's neck pain with caring heavy equipment while being underweight. The Board finds this collective evidence sufficient to warrant service connection. The Veteran has consistently and credibly reported suffering neck pain since service until the present. A.S.'s statements support the validity of the Veteran's reports and that the Veteran's neck pain is etiologically related to service. Finally, within the body of the 2021 examination, the examiner specified that pain and tenderness of the cervical spine were a symptom of cervical arthritis. Such arguably indicates that the Veteran's current neck pain is attributable to the arthritic changes of his cervical spine, continuity of symptomatology is established. The Board acknowledges there are negative opinions of record, but none specifically address the collective positive evidence of record. Therefore, the Board finds them no more probative than the above. Entitlement to service connection for degenerative arthritis and DDD of the cervical spine is therefore granted. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). REASONS FOR REMAND 4. Entitlement to service connection for a bilateral hip disability. The Veteran contends that she suffers from a bilateral hip disability that is etiologically related to service. She specifies that her small stature and weight could not handle the weight of equipment in-service and therefore caused undue strain on her hips resulting in pain and eventually leading to her current disability. Alternatively, she asserts that her hip disabilities are etiologically related to her service-connected spine disabilities. Current disability is established by way of a July 2021 VA examination which diagnosed iliotibial band syndrome (IBS) of the hips. Additionally, service treatment records confirm the Veteran reporting and seeking treatment for hip pain. She is also service connected for a lumbar strain and bilateral lower extremity sciatic nerve impairments. What remains is nexus. The Board remanded these matters for VA examination opinions as to etiology. In November 2021 a VA examiner opined that the Veteran's bilateral hip condition was not caused or aggravated by his service-connected back condition. The examiner indicated that "records" and physical examination did not suggest or support aggravation or causation "secondary to the back condition." This opinion is conclusory and is therefore inadequate as well. See Nieves-Rodriguez, 22 Vet. App. at 301. In that regard, the examiner did not address the Veteran's testimony/in-person reports of hip symptomatology occurring/worsening after experiencing spinal spasms. The examiner also did not address service treatment records which specifically indicate the Veteran's joint hip pain was treated by laying down and placing a pillow between her knees to decrease lower back pain/spasms. Moreover, the report is negative for discussion of private treatment records suggesting a correlation between the two conditions which appear to be treated jointly. Notably, records also contain instances of the Veteran initially seeking treatment for her back pain, but receiving a final diagnosis associated with a hip condition. Finally, the examiner did not address the specific symptomatology associated with the Veteran's lower extremity nerve impairment and how it impacts the hips. Given these omissions the opinion is inadequate, and a remand is required. The matter is REMANDED for the following action: Provide the Veteran's file to a physician with the appropriate knowledge and expertise to opine on a ITB syndrome of the bilateral hips. The examiner is asked to address the following: (*) Is it at least as likely as not that a ITB syndrome of the bilateral hips had its onset in or is otherwise etiologically related to active service, including repeated diagnosis of/treatment for hip pain in-service? (*) Is it at least as likely as not that a ITB syndrome of the bilateral hips was caused by any service-connected disability, including lumbosacral spine strain AND/OR his sciatic nerve disabilities of the lower extremities? (*) Is it at least as likely as not that ITB syndrome of the bilateral hips underwent any incremental increase in disability, regardless of its permanence, due to any service-connected disability, including lumbosacral spine strain AND/OR his sciatic nerve disabilities of the lower extremities? (*) Consideration must be given to the Veteran's reports of hip symptomatology occurring/worsening after experiencing spinal spasms. There should also be discussion of private treatment records which suggest a correlation between the Veteran seeking treatment for spinal pain but being diagnosed with hip pain and that the Veteran's hip and spine symptomatology were treated jointly. Additionally, discuss service treatment records which indicate the Veteran's joint hip pain was treated by placing a pillow between her knees to decrease lower back pain/spams. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.