Citation Nr: 23039335 Decision Date: 07/17/23 Archive Date: 07/17/23 DOCKET NO. 16-58 028 DATE: July 17, 2023 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 bilateral carpal tunnel syndrome (CTS) is denied. Entitlement to service connection for a right upper extremity musculoskeletal disability (to include the wrist and/or hand but not including the elbow), is denied. REMANDED Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left upper extremity musculoskeletal disability (other than a left shoulder disability or left elbow sprain) is remanded. Entitlement to service connection for a left lower extremity musculoskeletal disability is remanded. FINDINGS OF FACT 1. While on active duty for training, the Veteran had one complaint of the right shoulder in 1984, and one complaint of the left shoulder in 1984; she had one complaint of the left shoulder in 1986 while in the National Guard. 2. The Veteran affirmatively denied shoulder complaints on her February 1987 Report of Medical History, at which time an examiner found her upper extremities were normal upon examination, and there are no clinical records in the next decade noting complaints. 3. The evidence of record persuasively weighs against finding that the Veteran has a right shoulder disability which began during her military service or is otherwise related to it, manifested to a compensable degree within a year of service, or is otherwise related to service. 4. The evidence of record persuasively weighs against finding that the Veteran has a left shoulder disability which began during her military service, manifested to a compensable degree within a year of service, or is otherwise related to service. 5. The Veteran's service treatment records (STRs) are unremarkable for complaints of, treatment for, or diagnosis of, CTS, and there are no clinical records noting complaints in the next decade. 6. The evidence of record persuasively weighs against finding that the Veteran has bilateral CTS which began during her military service, manifested to a compensable degree within a year of service, or is otherwise related to service. 7. The Veteran's STRs are unremarkable for complaints of the right wrist or elbow; her February 1987 Report of Medical History for quadrennial purposes shows that she denied arthritis, rheumatism, or bursitis, denied bone, joint or other deformity, denied loss of a finger, denied neuritis, and denied broken bones, and her corresponding Report of Medical Evaluation showed normal upper extremities upon clinical examination. 8. The evidence of record persuasively weighs against finding that the Veteran has a right wrist and/or hand disability which began during her military service, manifested to a compensable degree within a year of service, or is otherwise related to service. 9. Any contention as to chronic symptoms in service with continuity of symptoms since service is not credible. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. 2. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. 3. The criteria for service connection for bilateral CTS are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. 4. The criteria for service connection for a right wrist/hand disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard from November 1983 to November 1989, with periods of active duty for training to include from March 1984 to July 1984. These claims were previously before the Board in November 2018 and March 2022, but were remanded for further development and consideration (i.e., to allow the Veteran to provide authorization for VA to obtain records, and for VA medical nexus opinions concerning the origins of her disabilities). There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives for the claims adjudicated below. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board also remanded the issue of entitlement to service connection for asthma. However, in June 2022, the agency of original jurisdiction granted service connection for that condition. Thus, that issue has been resolved and is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain chronic diseases - including arthritis - will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a?year?following separation from service,?or if they were noted in service (or within?the?presumptive period) with?continuity of symptomatology since service that is attributable to the chronic?disease.?38?U.S.C. §§?1101, 1112, 1113, 1137; 38?C.F.R. §§?3.307, 3.309(a).?Walker?v. Shinseki, 708?F.3d 1331, 1338 (Fed. Cir. 2013). Presumptive periods (allowing for initial manifestation of a "chronic" condition to a compensable degree within a year of separation from qualifying service) do not apply to periods of inactive duty for training or inactive duty for training, only instead to active duty. See Biggins v. Derwinski, 1. Vet. App. 474, 477-78 (1991). 1. - 2. Right and Left Shoulder Disabilities The Veteran asserts that she has shoulder disabilities due to daily long walks with "a lot of weight to be carried", and that she was not allowed to go to sick call. STRs show that the Veteran complained of right and left shoulder pain in March 1984, with an assessment of mild muscle spasm; and left shoulder pain in August 1986, with an assessment of muscle strain. Despite the 1984 and 1986 complaints, there were no further clinical complaints in service, and her shoulders were normal on Reserve quadrennial examination in February 1987. Notably, on her corresponding Report of Medical History dated in February 1987, she specifically denied a painful or trick shoulder. The Board finds that if she had a chronic shoulder disability, or a shoulder disability at that time, she reasonably would have reported it rather than specifically deny it, especially as she noted other problems. She also specifically denied arthritis, rheumatism, or bursitis. February 2016 correspondence from Dr. C. E. M. Q. shows that the Veteran presented with complaints of spinal symptoms radiating to the shoulders. He diagnosed her with degenerative joint disease, and found it more probable than not secondary to her service, but he failed to provide any rationale or state how the diagnosis was made. At this time of diagnosis, the Veteran was 64 years old, and had been out of service for more than two decades. The Board finds that this private opinion lacks significant probative value. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge, and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See id. at 473; see also White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Dr. Q.'s opinion lacks probative value because it fails to cite to any records in service or in the two decades after to support the finding to include any continuity of symptoms; it fails to discuss her denial of symptoms in 1987; it fails to discuss post-service factors such as aging; it fails to discuss that the severity was only "mild" more than two decades after service (and whether this is significant); and, critically, it fails to provide any adequate rationale. An April 2016 examiner diagnosed left trapezius myositis, but opined that this condition was not related to the Veteran's service. The examiner noted that the Veteran's in-service complaints of the left shoulder were acute and transient. A December 2019 disability benefits questionnaire (DBQ) shows the opinion of the examiner, in part, that osteoarthritis is a chronic condition that tends to progressively worsen over time with the natural aging process and/or due to repetitive trauma. The examiner stated that one does not develop degenerative joint disease in short periods of service, such as the Veteran's service in 1984. The examiner also noted that osteoarthritis is a long-standing process, and that age and/or occupational history predispose someone to developing degenerative joint disease, and is considered part of the normal aging process in patients older than 40 years old. A May 2022 DBQ notes that the Veteran has bilateral shoulder mild osteoarthritis (acromioclavicular joints), upon radiology testing. A February 2023 DBQ with a March 2023 clarifying DBQ reflect that it is less likely as not that the Veteran has a current shoulder disability incurred in service. The examiners' opinions were supported by the rationale that the 1984 symptoms were acute and transient (i.e., the Veteran subsequently denied complaints and had a normal evaluation), and were treated and resolved in service (based on no further notes showing any pain or impairment in the shoulders). The opinion was that the osteoarthritis diagnosed years after service has nothing to do with the service activities, but with aging. The Board finds that the VA-obtained opinions, especially when taken together, persuasively establish that it is less likely as not that any shoulder disability is due to service. The opinions contain adequate rationale for the opinions provided and support that the examiners reviewed the pertinent records. Essentially, they establish that the Veteran had acute and transient symptoms in service, subsequently denied complaints in 1987, had a normal examination in 1987, and many years later had complaints and a disability unrelated to service. Since the most probative - and therefore most persuasive, evidence is against her claim, not instead in approximate (nearly equal) balance, the benefit of the doubt rule is not applicable, and the claims for service connection for left and right shoulder disabilities must be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 3. Bilateral CTS The Veteran's STRs are unremarkable for complaints of the wrist and/or CTS. The Board finds that if she had chronic or significant complaints, she would reasonably have reported it, as she reported several other complaints. Her February 1987 Report of Medical History for Quadrennial purposes reflects that she reported that she was in "good health", and she denied arthritis, rheumatism, bursitis, and/or neuritis. As noted above, her upper extremities were normal upon clinical evaluation. In April 1992, the Veteran sought VA disability compensation for right elbow pain, but did not make any assertion as to the wrist/carpal tunnel. An April 1992 VA examination reflects that her neurological system was normal with no sensory motor deficit. The February 2016 correspondence from Dr. Q. discussed above also shows that the Veteran presented with complaints of spinal symptoms radiating to the wrists. He diagnosed her with degenerative joint disease and carpal tunnel syndrome, and found it more probable than not secondary to her service, but he failed to provide any rationale or state how the diagnosis was made. At this time of diagnosis, the Veteran was 64 years old. These diagnoses are more two decades after her service. The Board again finds that this private opinion lacks significant probative value. Dr. Q.'s opinion lacks probative value because it fails to cite to any records in service or in the more than two decades after to support the finding, and it fails to discuss post-service factors such as aging or her years of employment as an office clerk post service, which can reasonably be expected to require use of the upper extremities, to include the wrists. A December 2019 DBQ reflects that the Veteran denied wrist or hand pain, but reported bilateral numbness and tingling sensation; there was no pathology found upon examination. Another December 2019 DBQ for the peripheral nerves found that there was no objective evidence of a claimed neurological deficit. It was also noted that her complaints of paresthesia and pain are part and parcel of her claimed fibromyalgia, for which she is not in receipt of service connection (see March 2022 Board decision which denied the claim). A December 2022 DBQ notes that the Veteran has bilateral median nerve entrapment (CTS), but that it is less likely as not due to service. The examiner's opinion was based on a lack of evidence for this condition in active service or the following year, and that CTS is a focal injury at the wrist level usually due to chronic repetitive motion or vibration, but this did not occur in the Veteran's service. The examiner found it was less likely as not that the Veteran's disability was due to service. The Board finds this opinion probative, as it supplies a rationale with consideration of the Veteran's service. In sum, there are no clinical records noting complaints in service or in the next decade, and the most probative opinion weighs against a current disability related to service. As the evidence is persuasively against the claim, service connection for bilateral CTS is also not warranted. 4. Right Upper Extremity Musculoskeletal Disability (other than shoulder or elbow) In February 2016, Dr. Q. diagnosed the Veteran with degenerative joint disease of the elbows and wrists, and found it was more probable than not secondary to her military service. Again, no rationale was provided; thus, the opinion is not sufficient upon which to grant service connection. The Veteran's STRs are void of complaints of the right wrist or elbow. Her February 1987 Report of Medical History for quadrennial purposes shows that she denied arthritis, rheumatism, or bursitis, denied bone, joint or other deformity, denied loss of a finger, denied neuritis, and denied broken bones. Her corresponding Report of Medical Evaluation showed normal upper extremities upon clinical examination. An April 1992 VA examination report shows that the Veteran was seen for a right elbow complaint. X-ray of the right elbow was normal. No complaint was noted of the right wrist. A December 2019 DBQ reflects the opinion of the examiner that it is less likely than not that the Veteran had a right wrist/hand disability due to service. The examiner noted that upon examination, there was no pathology to render a diagnosis. VA clinical records show that the Veteran reported a motorcycle accident in December 2020 in which she suffered trauma to the extremities; a December 2020 record notes a right hand fracture. An August 2022 DBQ shows the opinion of the examiner that it is less likely as not that the Veteran has a wrist disability due to service. The examiner noted that Dr. Q.'s diagnosis was without clinical evidence of x-ray or other imaging studies. The examiner also noted that on July 16, 2021, the Veteran's x-ray showed no clinical evidence of degenerative changes at the right wrist. In addition, the examiner noted that the Veteran had a motor vehicle accident in 2020 in which she suffered a right wrist fracture and required surgery. The examiner found that any current right wrist disability is due to the Veteran's post-service motor vehicle accident. In sum, the Veteran's STRs are void of complaints of the right wrist or hand, there are no clinical records in the next decade noting complaints or diagnosis, Dr. Q.'s diagnosis has not been shown to have been supported by radiology findings and was contradicted by VA radiology findings, and the most probative evidence is against a finding that she has a current right wrist or hand disability due to service. Thus, the evidence is also persuasively against this claim, and service connection for a right upper extremity musculoskeletal disability (other than shoulder or elbow) is not warranted. Conclusion of all above adjudicated claims The Veteran was in service (active duty for training (ACDUTRA)) for four months in 1984. During that time, she sought treatment on numerous occasions for a variety of conditions. For example, she was seen for gastroenteritis (March), an ingrown toenail (March), left hand and knee pain (March), back pain (April), ingrown toenails (April), a headache/cramping/diarrhea/vomiting viral condition (May), sunlight bothering the left eye (May), and knee and foot complaints (June x 2). Thus, it is evident that she knew how to avail herself of treatment when she had symptoms and did so. During her subsequent National Guard service, she was also seen for diarrhea/stomach pain (June 1985), a sore throat (August 1985), sinusitis (August 1985), stomach ache (June 1986), left shoulder (August 1986), a foot blister (unreadable), itchy burning eyes/corneal abrasion (November 1986), vaginal complaints (March 1987) chest complaint and sensation of weakness (July 1987), and allergies (July 1987), pruritus (March 1989), tooth pain to hot, cold, and sweets (June 1989), and left elbow complaints (September 1989). The Board finds that if the Veteran had symptoms affecting the right shoulder, the left shoulder, the right wrist/hand, or suggestive of CTS, she reasonably would have reported them and they would have been noted in the clinical records. Any contention that she was denied the ability to go to sick call, or that it was frowned upon, lacks weight given her numerous visits to sick call. Moreover, even assuming that she was denied the ability to visit sick call on at least one occasion, she still could have reported complaints, if she had them, when seen at other times, and she reasonably would not have denied complaints when given the opportunity to report them in 1987. The earliest clinical post-service evidence is not until more than two decades after separation from ACDUTRA, and more than a decade after separation from National Guard service. This lengthy lapse of time between service separation and the earliest documentation of current disability weighs against service connection. The Board acknowledges that, in Buchanan v. Nicholson,?451 F.3d 1331, 1336?(Fed. Cir. 2006), the U.S. Court of Appeals for the Federal Circuit recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere?absence?of evidence does not necessarily equate to unfavorable evidence. However, in the present situation, not only is there an absence of records, but the Veteran denied symptoms in 1987 during her quadrennial assessment and had a normal evaluation. Moreover, as explained above, in light of the Veteran's seeking out treatment for various other conditions during service, the Board would expect to see some evidence of these conditions in service had they been present at that time. Any contention as to continuity of symptoms since service lacks credibility given the record as a whole, which suggests the Veteran did seek treatment for medical complaints when she had them. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion as to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the joints, nerves, and arthritis due to trauma versus age. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. Moreover, as explained above, the clinical opinions of Dr. Q. lack significant probative value because they lack adequate rationale. There is no probative opinion (i.e., competent, and credible, based on review of the pertinent records, and with adequate supporting rationale) that it is as likely as not that the Veteran has one of the claimed disabilities due to service. Finally, the Board notes that there is no probative evidence that the Veteran had arthritis or an organic disease of the nervous system which manifested to a compensable degree within a year of service. Therefore, service connection on a presumptive basis under 38 C.F.R. § 3.307 and § 3.309 is not warranted. Again, since the most probative - and therefore most persuasive, evidence is against her claims, not instead in approximate (nearly equal) balance, the benefit of the doubt rule is not applicable. REASONS FOR REMAND 1. - 2. Right Elbow Disability, and Left Upper Extremity Musculoskeletal Disability (other than a left shoulder disability or left elbow sprain) In February 2016, Dr. Q. diagnosed the Veteran with degenerative joint disease of the elbows and wrists, and found it was more probable than not secondary to her military service. However, no rationale was provided; thus, the opinion is not sufficient upon which to grant service connection. Although a December 2019 DBQ and an August 2022 DBQ contain opinions that it is less likely as not that the Veteran has a disability due to service, and that there was no pathology to render a diagnosis, they also reflect that radiology testing was not performed. Thus, it appears that Dr. Q. rendered a diagnosis without radiology testing, and the DBQ examiners found no diagnosis without radiology testing. Thus, radiology testing is warranted to confirm whether or not the Veteran has degenerative joint disease of the right elbow, left elbow, and/or left wrist. The Board notes that the Veteran is already service-connected for a left elbow sprain. 3. Left Lower Extremity Musculoskeletal Disability The Veteran contends that while in service, she fell on top of a tree root, hitting her left knee, causing pain, a wound, and swelling. She testified that the paramedics stabilized the knee, which was swollen and bruised, but she had to run the next morning. She stated that her request to go to sick call was denied (see February 2017 statement); there are no STRs noting a fall over a root with ensuing injuries. A March 29, 1984 STR (Screening Note of Acute Medical Care) reflects that the Veteran was seen for left knee pain of two days in duration. It was noted that there had been no trauma in the past 24 hours. There was no swelling and no pain. (The Board acknowledges that in its March 2022 Remand, it stated that the Veteran was seen in March 1984 for left knee pain, swelling and trauma; however, upon further review, the Board notes that the pertinent STR actually states "no" to swelling or trauma in the past 24 hours.) The Veteran's February 1987 Report of Medical Examination for quadrennial purposes shows that her lower extremities were normal upon clinical evaluation. Her corresponding Report of Medical History reflects her report that she was in "good health", and that she denied a trick or locked knee, denied arthritis, rheumatism, or bursitis, and denied lameness. A December 2019 VA examiner diagnosed the Veteran with left knee meniscus tear, left knee osteoarthritis, and left trochanteric bursitis. He provided a negative etiology opinion with respect to the left hip based on a lack of STRs noting complaints, a lack of clinical records in the year after service, and a finding that the Veteran's left hip condition dates to recent years. An August 2022 addendum/clarification DBQ reflects the opinion of the examiner that it is less likely as not that the Veteran's left knee osteoarthritis was incurred in, caused by, or aggravated by, service. The examiner stated that the STRs are "silent regarding any diagnosis of symptoms" of left knee osteoarthritis. However, the examiner did not adequately explain why the March 1984 complaints were not symptoms of arthritis. Thus, an addendum opinion, with rationale, is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for radiology (x-ray) examination of her right elbow, left elbow, and left wrist. If, and only if, the Veteran has degenerative joint disease upon radiology testing, obtain an addendum opinion to the August 2022 DBQ as to whether any such disability is as likely as not causally related to service. 2. Obtain an addendum to the August 2022 addendum/clarification opinion on the left knee. The examiner is asked to consider the March 1984 STR noting a complaint of left knee pain. The examiner should provide additional rationale to the August 2022 finding that it is less likely as not that any current disability is due to service, specifically discussing the Veteran's March 1984 complaints and why they are not evidence of/the cause of current osteoarthritis. An adequate rationale must be provided for all opinions. If the opinion differs from the August 2022 opinion, the examiner should provide rationale for any change. L. STEPANICK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.