Citation Nr: 25005484 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 17-66 694 DATE: April 23, 2025 ORDER Service connection for a left shoulder disability is denied. Service connection for a right hand disability is denied. Service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. The Veteran's left shoulder disability is not attributable to his active military service, and arthritis of the left shoulder was not manifest within one year of separation from service. 2. The Veteran's right hand and cervical spine disabilities are not attributable to active military service, have not been caused or aggravated by a service-connected disability, and arthritis of the right hand and cervical spine was not manifest within one year of separation from service. ? CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right hand disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1989 to September 1997 in the United States Army, with a prior period of active duty for training from April to September 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. In September 2021, the Veteran testified at a virtual hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In July 2024, the Board notified the Veteran that the VLJ who conducted the September 2021 hearing was no longer employed at the Board. While he was provided with the opportunity to schedule a second hearing before the Board, the Veteran did not request an additional hearing. The electronic filing system contains records that were associated with the file by VA, rather than the Veteran, since the last readjudication of the claims without a waiver of initial review by the VA Regional Office. However, as the records are duplicative of those already received or are otherwise not pertinent to the claims adjudicated below, there is no risk of prejudice to the Veteran from proceeding without the waiver. Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Therefore, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection. In addition, for certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). As a matter of clarification, to the extent the Board previously found inadequacies with aspects prior VA examinations, the examination reports are not inadequate as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains.") Further, the decisions here do not rest exclusively on the portions previously deemed inadequate, and the Board has additionally relied on examination reports that have not been formerly characterized as inadequate. Finally, while the record indicates that the Veteran had active service during the Persian Gulf War, the presumptions referable to Persian Gulf veterans are inapplicable to the claimed disabilities as the record contains no objective indications of a qualifying chronic disability. See 38 C.F.R. § 3.317 (a)(1). 1. Service connection for a left shoulder disability is denied. The Veteran has a current left shoulder strain and degenerative arthritis, documented on VA examination in August 2023 and in 2012 treatment records. At the September 2021 hearing, he testified that his current disability is due to the rigors of military service, including such duties as performing mechanic work in tanks for prolonged periods of time. On the Veteran's December 1988 service entrance examination, no abnormalities of the upper extremities were found and the Veteran rendered no pertinent complaints. Thereafter, in an undated record, he reported left shoulder pain and was assessed with a possible muscle tear. On his May 1997 service separation examination, the examining physician found no abnormalities of the upper extremities, including the left shoulder. On the accompanying Report of Medical History on separation from service, he reported having right shoulder problems, but made no such report regarding the left shoulder. On the matter of the etiology of the disability, the record contains several opinions. On VA examination in April 2014, the examiner reviewed the claims file and performed a clinical examination of the Veteran. The Veteran reported that the onset of his left shoulder disability was in 2012 in proximity to a neck surgery. The examiner opined that the current disability was less likely than not incurred in or caused by military service in light of the lack of a history of any recurrent or chronic left shoulder disability. On VA examination in August 2023, the examiner reviewed the claims file and performed a clinical examination of the Veteran. The Veteran reported that his left shoulder pain began as the result of physical training in service. The examiner opined that the current disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner summarized pertinent medical evidence, including the service treatment records, and noted a lack of diagnoses or treatment pertaining to the left shoulder in service. She noted that the report of a painful or trick shoulder in May 1997 pertained exclusively to the right shoulder. Additionally, x-rays taken in 2023 did not indicate any abnormality related to service. In a December 2023 VA medical opinion, the examiner reviewed the claims file, including the October 2023 remand addressing the Veteran's reports of a left shoulder disability as related to the rigors of military service while working on tanks. The examiner opined, however, that the current disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner considered the undated service treatment record documenting a potential muscle tear, but noted that because no follow-up of the incident was required, a muscle tear was unlikely. Moreover, the examiner explained that the current degenerative arthritis has no pathoanatomical correlation to a muscle tear. Considering the pertinent evidence in light of the governing legal authority, the Board finds the evidence is persuasively against claim. The probative evidence does not show that the current left shoulder disability is related to active military service or that a chronic disability was incurred in service. As indicated by the December 2023 VA examiner, the in-service injury appeared to be acute and transitory. This finding is supported factually as no pertinent abnormalities were found on clinical examination on separation from service, and arthritis of the left shoulder was not found within one year of his September 1997 discharge. In addition, the Board finds that the assertions of an in-service left shoulder injury are not credible in light of inconsistencies among the Veteran's statements. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In contrast to other statements, the Veteran reported to the April 2014 VA examiner that his left shoulder disability did not arise until 2012 in proximity to a neck surgery. Further, the fact that the Veteran sought treatment for other conditions after service, but not a left shoulder disability, weighs against the credibility of any assertion that the current disability was present in and persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). The claims file contains a VA examination report of May 1997 (conducted during active duty) and treatment records dating back to 1997 documenting other orthopedic complaints, without mention of a left shoulder disability. Because he described other complaints of pain and provided overall assessments of his health and functioning to his providers, without mention of a left shoulder disability, it is reasonable to conclude that none were present. Id. The medical opinion evidence is also persuasive. The VA examiners addressed the assertions of direct service connection, but opined that the Veteran's current disability is not related military service. The examiners based their conclusions on an examination of the Veteran, diagnostic reports, and pertinent records in the claims file. They reviewed the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examiners' opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as degenerative arthritis and a shoulder strain. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Moreover, as noted above, the inconclusive and inconsistent nature of his reports regarding the onset of left shoulder symptomatology renders his reports unreliable for purposes of determining the inception of the condition or of its relationship, if any, to service. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs persuasively against the claim, that doctrine is not applicable. 2. Service connection for a right hand disability is denied. The Veteran has current degenerative arthritis of the right hand, documented on VA examination in August 2014. At the September 2021 hearing, he testified that his current disability is due to the rigors of military service, including such duties as performing mechanic work in tanks for prolonged periods of time. He also reports that his disability is secondary to other service-connected disabilities. As an initial matter of clarification, in the course of the appeal, the Board has questioned whether the Veteran's right hand disability preexisted service based on his December 1988 Report of Medical History documenting broken fingers in high school. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. This legal concept is known as "the presumption of soundness." Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, as here, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). On the Veteran's December 1988 Report of Medical Examination on entry into service, the examining physician found no abnormalities of the upper extremities, including in strength and range of motion. On VA examination in August 2014, the examiner provided a medical opinion addressing whether the preexisting right hand disability was aggravated by service. In doing so, however, the examiner provided no rationale to support his finding of a preexisting disability; to the contrary, he documented that the onset of the Veteran's right hand disability was in 2010. In two separate VA medical opinion reports in December 2023, the examiner opined that it was not clear and unmistakable that a right hand disability preexisted service. As rationale, the examiner noted that Veteran's entrance examination of the upper extremities, including the hands, was normal. While the Veteran reported having broken finger(s) in high school, a residual of such an injury is not found anywhere in the medical record to support a finding of a preexisting hand disability. There is otherwise no evidence indicating a preexisting disability of the right hand. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b). In light of the lack of rationale provided by the August 2014 VA examiner and on consideration of the December 2023 VA examination report, the Board cannot find "clear and unmistakable" evidence that a right hand disability existed prior to service. Given all of this, legal analysis of the claim as a "preexisting condition" is not applicable. As discussed, no abnormalities of the hand were noted on the Veteran's service entry examination report. Thereafter, in February 1995, he reported having right thumb pain for one week. He had full movement other than when moving the thumb upward, and there was no swelling, radiation, or obvious deformity. The Veteran was prescribed Motrin and ice. On his May 1997 separation examination, the examining physician found no abnormalities of the upper extremities, including the right hand. The Veteran rendered no pertinent complaints on the accompanying Report of Medical History. On the matter of the etiology of the disability, the record contains several opinions. On VA examination in May 1997, the Veteran reported having pain in the palm of his right hand. He reported that there was no history of any injury. On clinical examination of the hand, the examiner found no abnormalities. X-rays were taken and the right hand was found to be normal. On VA examination in August 2014, the examiner reviewed the claims file and performed a clinical examination of the Veteran. The Veteran reported that the onset of his right hand disability was in 2010, and consisted of tingling in his fingers. The examiner opined that the current disability was less likely than not incurred in or caused by military service in light of the lack of complaints, diagnoses, or treatment in service. Rather, the examiner opined that the current degenerative arthritis was most likely due to the natural aging process. On VA examination in August 2023, the Veteran reported that his right hand disability began in 2008. On clinical examination, examiner found no current disability of the right hand. In addressing the etiology of the disability, the examiner repeated that there was no current pathology sufficient to establish a diagnosis. In a December 2023 VA medical opinion, the examiner reviewed the claims file, including the October 2023 remand addressing the Veteran's reports of a right hand disability as related to the rigors of military service while working on tanks. The examiner concluded, however, that the current disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the single instance of right thumb pain, but opined that the incident was acute. With regard to secondary service connection, the examiner opined that the current disability was less likely than not caused or aggravated by a service-connected disability. As rationale, the examiner noted that none of the Veteran's service-connected disabilities have a pathoanatomical or pathophysiological correlation to the right hand so as to cause or aggravate right hand pain. Considering the pertinent evidence in light of the governing legal authority, the Board finds the evidence is persuasively against claim. The probative evidence does not show that the current right hand disability is related to active military service or that a chronic disability was incurred in service. As determined by the December 2023 VA examiner, the in-service thumb injury was acute and transitory. This finding is supported factually as no pertinent abnormalities were found on clinical examination on separation from service, and arthritis of the right hand was not found within one year of his September 1997 discharge. In addition, the Board finds that the assertions of an in-service right hand injury due to the rigors of service are not credible in light of inconsistencies among the Veteran's statements. See Madden, 125 F.3d at 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). As described above, the Veteran reported to the May 1997 VA examiner that he had no history of any injury. On VA examination in August 2014, he reported a post-service onset of the disability in 2010. On VA examination in August 2023, he reported a post-service onset of 2008. The medical opinion evidence is also persuasive. The VA examiners addressed the assertions of direct and secondary service connection, but opined that the Veteran's current disability is not related military service or a service-connected disability. Another etiology of the current arthritis, the aging process, was identified. The examiners based their conclusions on an examination of the Veteran, diagnostic reports, and pertinent records in the claims file. They reviewed the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examiners' opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as degenerative arthritis. See, e.g., Kahana, 24 Vet. App. at 435. Moreover, as noted above, the inconclusive and inconsistent nature of his reports regarding the onset of right hand symptomatology renders his reports unreliable for purposes of determining the inception of the condition or of its relationship, if any, to service or a service-connected disability. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs persuasively against the claim, that doctrine is not applicable. 3. Service connection for a cervical spine disability is denied. The Veteran has current degenerative disc disease of the cervical spine, status-post surgical repair, documented on VA examination in August 2023. At the September 2021 hearing, he testified that his current disability is due to the rigors of military service, including such duties as performing mechanic work in tanks for prolonged periods of time. He has also reported that his disability is secondary to other service-connected disabilities. On the Veteran's December 1988 service entry examination, no abnormalities of the head or neck, or any portion of the spine, were found and he reported no pertinent complaints on the accompanying Report of Medical History. Service treatment records thereafter are silent for complaints, diagnoses, or treatment related to the cervical spine. On his May 1997 separation examination, the examining physician found no abnormalities of the neck or spine. The Veteran rendered no pertinent complaints on the accompanying Report of Medical History. On the matter of the etiology of the disability, the record contains several opinions. On VA examination in August 2023, the examiner reviewed the claims file and performed a clinical examination of the Veteran. The Veteran reported that his neck disability arose in 2004. The examiner opined that the current disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner summarized pertinent medical evidence, including the service treatment records, and noted a lack of diagnoses or treatment pertaining to the cervical spine in service. With regard to secondary service connection, the examiner opined that the current disability was less likely than not caused or aggravated by a service-connected disability. As rationale, the examiner noted that none of the Veteran's service-connected disabilities have an anatomical or pathophysiological relationship with the neck so as to cause or aggravate the current cervical spine disability. The examiner noted that the Veteran's service-connected disabilities involve different anatomical and physiological systems, based on a review of medical literature. Additionally, the examiner noted that the record contained no complaints or treatment related to the cervical spine as the result of any service-connected disability. In a December 2023 VA medical opinion, the examiner reviewed the claims file, including the October 2023 remand addressing the Veteran's reports of a cervical spine disability as related to the rigors of military service while working on tanks. The examiner opined that the current disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness given the lack of any pertinent diagnoses, complaints, or treatment in service. With regard to secondary service connection, the examiner opined that the current disability was less likely than not caused or aggravated by a service-connected disability. As rationale, the examiner noted that none of the Veteran's service-connected disabilities have a pathoanatomical or pathophysiological correlation to the cervical spine so as to cause or aggravate the current disability. Considering the pertinent evidence in light of the governing legal authority, the Board finds the evidence is persuasively against claim. The probative evidence does not show that the current cervical spine disability is related to active military service or that a chronic disability was incurred in service. A review of the post-service medical records does not reveal any documentation of arthritis of the cervical spine within one year of the Veteran's September 1997 discharge. In addition, the Board finds that the assertions of an in-service cervical spine injury are not credible in light of inconsistencies among the Veteran's statements. See Madden, 125 F.3d at 1481. In contrast to other statements, the Veteran reported to the August 2023 VA examiner that the disability arose in 2004. Further, the fact that the Veteran sought treatment for other conditions after service, but not a cervical spine disability, weighs against the credibility of any assertion that the current disability was present in and persisted since discharge. See AZ, 731 F.3d at 1315. The claims file contains a VA examination report of May 1997 (conducted during active duty) and treatment records dating back to 1997 documenting other orthopedic complaints, without mention of a cervical spine disability. Because he described other complaints of pain and provided overall assessments of his health and functioning to his providers, without mention of a cervical spine disability, it is reasonable to conclude that none were present. Id. The medical opinion evidence is also persuasive. The VA examiners addressed the assertions of direct and secondary service connection, but opined that the Veteran's current disability is not related military service or a service-connected disability. The examiners based their conclusions on an examination of the Veteran, diagnostic reports, and pertinent records in the claims file. They reviewed the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examiners' opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as degenerative disc disease. See, e.g., Kahana, 24 Vet. App. at 435. Moreover, as noted above, the inconclusive and inconsistent nature of his reports regarding the onset of cervical spine symptomatology renders his reports unreliable for purposes of determining the inception of the condition or of its relationship, if any, to service. (Continued on the next page) ? The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs persuasively against the claim, that doctrine is not applicable. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.