Citation Nr: 1743969	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  09-19 472	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a disability of the neck and right shoulder, to include arthritis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Orie, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from September 1969 to September 1972 and in the United States Navy from February 1975 to July 1978.

This case comes before the Board of Veterans' Appeals on appeal from a September 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The jurisdiction of the case has subsequently been transferred to the RO in Columbia, South Carolina.  

In April 2015, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing.  A copy of that transcript is of record.

The case was previously before the Board in March 2016, at which time it was remanded for additional development.  The case is again before the Board for appellate adjudication.


FINDINGS OF FACT

1. The probative evidence demonstrates that the Veteran's current neck disability was not incurred in, caused by, or otherwise attributable to her periods of service.

2. The probative evidence demonstrates that the Veteran's current right shoulder disability was not incurred in, caused by, or otherwise attributable to her periods of service.


CONCLUSIONS OF LAW

1. The criteria for service connection for a neck disability have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2016).

2.  The criteria for a right shoulder disability have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has met all statutory and regulatory notice and assistance provisions with respect to the issues decided herein.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  An August 2011 letter satisfied the duty to notify provisions with respect to claims decided herein.  See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

As it pertains to the duty to assist, VA has obtained the Veteran's service treatment records, post-service treatment records, and lay statements of argument.  In addition, the Veteran underwent VA examination in December 2011 and July 2015; an addendum opinion was obtained in June 2016.  The record demonstrates that the VA examiners reviewed the Veteran's relevant medical history and lay statements, completed a physical examination and other appropriate testing, and provided an opinion as to the clinical findings.  In addition, the VA examiner provided an adequate rationale for the opinion stated, relying on and citing to the records reviewed.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not from the mere fact that the claims file was reviewed).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met with respect to the claims decided herein.  38 C.F.R. § 3.159 (c)(4).

There is no indication in the record that any additional evidence relevant to the issues is available and is not part of the claims file.  See Pelegrini, 18 Vet. App. 112.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.

All of the evidence in the Veteran's record has been thoroughly reviewed.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters.  The Veteran should not assume that pieces of evidence, not explicitly discussed, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

Service Connection

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303 (d). 

To establish service connection, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d). 

In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303 (b); See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)).

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d). 

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Turning to the facts of the present case, the Veteran contends that she has current disabilities of the neck and right shoulder, which stem from her period of service.  A review of service treatment records reveals that the Veteran often reported shoulder pain.  Notably, in November 1977, the Veteran reported to sick call, stating that she experienced tightness in both shoulders after carrying heavy luggage.  She was diagnosed with bilateral muscle strain.

Subsequently, in May 1978, the Veteran reported right shoulder and neck pain for about one month, after lifting a heavy toolbox.  She described the pain as sharp in nature, which worsened with activity.  Upon examination, the Veteran was diagnosed with myofascial syndrome of the right trapezius muscle and was given injections to alleviate the pain.

Upon separation examination in July 1978, the Veteran's neck and upper extremities were noted as clinically normal.

Subsequent to service, at the November 1978 VA examination, the Veteran reported having pain when lifting heavy weight.  She stated that she had discomfort in her right shoulder since April 1978, while in service.  Upon examination, both x-ray testing and range of motion testing revealed normal results.  She was diagnosed with bicep tendonitis.

In October 2007, an MRI of the right shoulder was obtained.  The results revealed a moderate acromioclavicular degenerative change, along with high grade partial thickness bursal surface tear in the tendon.  There was also a small focal high grade articular surface tear in the distal supraspinatus tendon.  An etiology was not provided.

Subsequently, a January 2008 MRI of the cervical spine revealed degenerative disc changes at the C6-C7 level.

In February 2008, the Veteran reported that she injured her shoulder in the military, and then subsequently re-injured the shoulder and the neck.  Upon examination, the doctor noted decreased neck rotation and degenerative changes of the cervical spine.

In July 2008, the Veteran underwent surgery to repair a right rotator cuff tear.  It was noted that the Veteran's rotator cuff was intact.  The postoperative diagnosis was changed to anterior impingement and arthrosis.  

During a June 2009 pain consultation, the Veteran reported sharp pain upon lifting her right arm.  Upon examination, the physician assessed right shoulder pain and partial thickness, right rotator cuff repair, status post negative arthroscopy.

In February 2010, the Veteran was diagnosed with mild cervical spine osteoarthritis.  An etiology was not provided.

The Veteran was afforded a VA examination in December 2011 for her neck, at which time, the Veteran reported having intermittent, progressively worsening chronic neck pain since her service in the Navy.  The clinician noted a past diagnosis of a mild, chronic cervical sprain in May 2002.  Upon examination, the clinician diagnosed degenerative disc disease of the cervical spine and opined that it was less likely than not incurred in or caused by service.  Rather, the clinician attributed the Veteran's disability to aging.  

The Veteran was afforded a second VA examination in July 2015.  Upon examination, the clinician opined that the Veteran's neck and right shoulder disabilities were less likely than not incurred in or caused by service.  In so finding, the clinician rationalized that x-rays obtained shortly after discharge were negative for any disabilities.  The clinician found that the lengthy gap in treatment from service until 2004 demonstrated a lack of evidence of a nexus between the complaints documented in service and the Veteran's current disabilities.

Most recently, a third VA opinion was obtained in June 2016.  The opining physician again provided a negative nexus between the Veteran's period of service and her current disabilities.  The physician found that the Veteran's in-service injuries were non-specific, self-limiting, and resolved without evidence of a current or potential chronic condition.  Therefore, the Veteran's current disability did not begin in, nor was caused by, and was not otherwise related to her period of service.

After careful consideration of all the evidence of record, the Board finds that service connection for a disability of the neck and right shoulder is not warranted.  In so finding, the Board has considered the Veteran's lay statements of record.  Throughout the record, the Veteran maintains that she experienced continuous pain in her neck and her right shoulder since her period of naval service.  As a lay witness, the Veteran is certainly competent to attest to symptoms with in her purview that she experienced, such as pain.  Jandreau, 492 F.3d at 1377.  In addition, there is nothing in the record to call into question the credibility of such statements.  However, the Board finds that the objective medical evidence of record is more probative in addressing the issue of whether her current disabilities started and continued since service.  Upon discharge, the Veteran's neck and shoulder were noted as clinically normal.  While she did describe having pain of the right shoulder in service, subsequent to lifting heavy objects, clinicians did not diagnosis a chronic, residual disability.  Shortly after service in October 1978, upon x-ray testing, the Veteran's right shoulder was normal; she voiced no complaints related to the cervical spine at that time.  Given this evidence service connection on a presumptive basis is not warranted, as arthritis of the neck and shoulder did not manifest to a compensable degree within one year after discharge.  

The Board further finds that the most probative evidence of record to be the objective medial opinions from the VA examiners.  The opinions were rendered after examination of the Veteran and review of the record.  The opinions were based on diagnostic imaging results, both past and present, and provided a thorough rationale.  The clinicians applied the facts of the Veteran's medical history to medical principles to support the conclusion that her neck and right shoulder disabilities were not related to service.  In addition, in providing the negative nexus, the December 2011 examiner provided an etiology of the Veteran's symptoms.  Overall, the Board finds these medical opinions to be competent, credible, and highly probative on the issue of etiology.   Nieves-Rodriguez, 22 Vet. App. 295 (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not from the mere fact that the claims file was reviewed).

In sum, the evidence of record reflects that the Veteran's in-service injury did not result in a residual, chronic disability.  Additionally, the most probative evidence establishes that Veteran's current disabilities did not manifest as a result of her periods of service.  With that said, the evidence of record is against a finding that service connection is warranted on either a direct or presumptive basis.  The benefit of the doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).








ORDER

Entitlement to service connection for a disability of the neck and right shoulder, to include arthritis is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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