Citation Nr: 1326992 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-07 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral shoulder disorders. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared and testified at a personal hearing in May 2011 before the undersigned Veterans Law Judge sitting in Waco, Texas. A transcript of the hearing is contained in the record. In September 2011, November 2012 and July 2013, the Board remanded the claim for further development. FINDING OF FACT Bilateral shoulder disabilities were not manifest in service and are not otherwise attributable to active service, nor were they caused by or permanently made worse by a service connected disability. CONCLUSION OF LAW Bilateral shoulder disabilities were not incurred in or aggravated by service nor were they caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in October 2007 VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and what part VA would attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Analysis The Veteran appeals the denial of service connection for a bilateral shoulder disability. During his May 2011 hearing he testified that he incurred a chronic shoulder disorder during service which continued post service. He recalled having shoulder pain after an accident in which his M113 armored personnel carrier bounced off a tree. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b). Based on the evidence of record, the Board finds that the preponderance of the most probative evidence is against entitlement to service connection for residuals of a bilateral shoulder disability. Service treatment records reveal that the Veteran reported a three day history of right shoulder and upper arm pain in February 1981. There was cervical spine and shoulder tenderness. No shoulder abnormalities were visualized when the joints were x rayed. When examined in June 1981 for class I flight status, the Veteran denied a painful or trick shoulder. Physical examination revealed the upper extremities to be clinically normal. In March 1983, he complained of right shoulder pain with an onset of two years ago. Chronic inflammation of the right shoulder was assessed. The upper extremities were shown to be normal during the July 1985 quadrennial reserve examination. The Veteran also denied painful or trick shoulder at that time. Back pain that extended through shoulders was reported while in the reserves in September 1986. Following a physical examination the assessment was muscle spasm. The appellant did not report that the pain began in either shoulder, and a shoulder disorder was not diagnosed. The Veteran was seen for a VA compensation examination in October 2011. He reported injuring his right shoulder in-service when his vehicle struck a large tree resulting in a forceful hyperextension of the shoulder. Following the examination the appellant was diagnosed with a right shoulder impingement syndrome. The examiner opined, however, that the right shoulder disability was less likely than not (less than 50 probability) incurred in or caused by the claimed in service injury, event or illness. The VA examiner reasoned that there was minimal evidence of any right shoulder impingement syndrome in the service treatment records. Therefore he found that it was more likely than not that the Veteran's right shoulder impingement syndrome was related to the effects of aging, weakening of the rotator cuff muscles due to physical inactivity and a genetic predisposition to developing rotator cuff impingement. The appellant was seen for a VA examination in January 2013. He reported injuring the joint in 1981 and being told that he may have arthritis/bursitis in the joint. He further stated that after the accident he continued to have pain. The examiner was provided access to the claims folder in March 2013, and following a review of same opined that there was no evidence of a chronic right shoulder disorder in-service, and that examinations in 1981 and 1985 were negative for any shoulder pathology. Hence, the examiner opined that a left shoulder disorder was not related to service. After the RO granted entitlement to service connection for a cervical myofascial syndrome the Board ordered further development. The claims folder was then reviewed by a VA examiner in July 2013 who opined that the claimed shoulder disorders were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected cervical spine disability. He found that there is nothing in the currently accepted, peer reviewed, credible and authoritative orthopedic literature that demonstrates that an intrinsic cervical condition will cause intrinsic conditions of the shoulder joints. The examiner further found that there is no evidence of aggravation (as defined for VA purposes) of the shoulders due to the service connected spine condition. The examiner again expressed that there is nothing in the currently accepted, peer reviewed, credible and authoritative orthopedic literature that demonstrates that a cervical spine condition will cause aggravation of intrinsic conditions of the shoulder joints. Although the record shows complaints of shoulder pain during service when examined in June 1981 and July 1985 the appellant denied a history of a trick shoulder, and physical examination revealed that he had clinically normal shoulders. These factors cast doubt on the credibility of the Veteran's assertion that he has had chronic shoulder pain since the February 1981 injury. Buchanan v. Nicholson, 451 F.3d 1331, 1136-7 (Fed. Cir. 2006) (Factors for consideration in assessing credibility include inconsistent statements, and consistency with other evidence). Indeed, after the appellant's separation from the reserve the record is silent for any shoulder complaints until his 2007 claim for compensation. The passage of many years between discharge from active service and the medical documentation of a disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The claims folder does not contain any competent evidence relating the Veteran's shoulder disability to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. The Board has reviewed all service treatment records and all VA medical records of file. These records do not include any opinion linking the Veteran's disability to service. In contrast examiners in October 2011, January 2013 and July 2013 each found no relationship between the appellant's shoulder disorders and service, and the July 2013 examiner specifically found that any shoulder disorder was not caused or aggravated by the Veteran's service connected cervical disorder. To the extent that the Veteran argues that his disability is related to service and/or his service connected cervical spine disability, the Board acknowledges his contentions, but finds that as a lay person, he is not competent to render an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the medical opinions are persuasive and warrant being assigned greater probative weight. The opinions were rendered by medical professionals with the expertise to opine on the matters at issue in this case. In addition, the examiners addressed the Veteran's contentions and based their opinions on a review of the claims folder as well as a complete physical examination. In sum, the most probative evidence of record is against showing that the appellant's bilateral shoulder disabilities are related to service and/or his service connected cervical spine disability. Accordingly, entitlement to service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for bilateral shoulder disorders is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs