Citation Nr: 1605017 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 12-24 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran had active military service from October 1985 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In March 2012, a hearing was held before a Decision Review Officer (DRO) at the RO. In December 2013, a Travel Board hearing was held before the undersigned. Transcripts of both hearings are in the claims file. In a December 2014 decision, in pertinent part, the Board reopened the claim of service connection for a left shoulder disability and remanded it for additional development. The matter was subsequently remanded by the Board in August 2015. FINDING OF FACT The Veteran's left shoulder complaints in service were acute and resolved; a chronic acquired left shoulder disability was not manifested in service; arthritis of the left shoulder was not manifested in the first postservice year; and the Veteran's current left shoulder disability is not shown to be related to his service/complaints and injuries therein. CONCLUSION OF LAW Service connection for a left shoulder disability is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The duty to notify was satisfied by letters in December 2007. Regarding the duty to assist, the Veteran's service treatment records (STRs) and pertinent post service treatment records have been secured and he was afforded VA examinations. The Board finds the October 2015 medical opinion adequate with respect to the issue decided herein. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board also finds that there has been substantial compliance with the December 2014 and August 2015 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, in light of the foregoing, the record as it stands includes adequate competent evidence to allow the Board to decide this matter, no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289 (2013). For chronic diseases listed in 38 C.F.R. § 3.309(a)-including arthritis-service connection may also be established by showing continuity of symptoms. 38 C.F.R. § 3.303(b); 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). In addition, certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs show that, in July 1991, he sought treatment for a 6 month history of left shoulder pain. He reported having injured his shoulder 6 months previously lifting a heavy object. There was no edema or dislocation on examination and he had full AROM (active range of motion) without crepitus on ROM (range of motion). The AC (acromioclavicular) joint was intact without tenderness (the shoulders were tender anteriorly). The assessment was rule out chronic tendonitis versus bursitis. On follow-up examination the same month, the assessment was rule out bursitis, he was treated with Naprosyn and heat and put on a 10 day profile. There was no edema, dislocation or deformity and he had full AROM without crepitus. There was tenderness in the anterior segment of the joint, rotator cuff and AC joint were intact and WNL (within normal limits). X-ray examination was within normal limits. He was to return to the clinic as necessary; however, the STRs show no further left shoulder treatment. The Veteran complained of left shoulder pain April 1993 on service separation examination. A December 1993 VA general medical examination report notes the Veteran's history of February 1991 left shoulder injury when he "tore up his shoulder falling as he slipped on the ice and grabbed a tree. It seemed as if his shoulder had come out of place." The Veteran complained that his left shoulder "occasionally hurts and seems to be in place." On December 1993 VA joints examination, left shoulder X-ray showed "no significant abnormality" and the examiner provided no findings or diagnosis of left shoulder impairment. On May 2008 VA examination, the Veteran reported a 16 year history of constant left shoulder pain (his shoulder condition had existed since 1991) due to injury caused by "removing cans from bed of truck during field exercises, yanked upwards and left shoulder popped." He reported that he re-injured the left shoulder in March 1991, after slipping and falling down a hill on exercises in Korea. X-ray examination showed degenerative arthritic changes of both shoulders. The diagnosis was degenerative arthritis of both shoulder joints. Private treatment records show that the Veteran sought treatment for complaints of left shoulder pain in March 2012. He report the date of onset as 1991, when he was in the military. He also reported that the pain had been present for more than 20 years and was getting worse. The Veteran reported having received cortisone injections 2 years previously at the VA Medical Center which did not help. The assessment was impingement syndrome versus rotator cuff tear. MR (magnetic resonance) examination showed " 1. Elevated T2 signal intensity within the supraspinatus tendon is likely due to tendinopathy. No rotator cuff tear is detected. 2. There is a minimal focus of marrow edema in the distal anterior clavicle, adjacent to the acromioclavicular joint." During his March 2012 DRO hearing, the Veteran asserted that his left shoulder condition is directly related to his military service because the only shoulder injuries he has sustained were the two injuries during his period of active duty service. On May 2012 VA examination, the Veteran's left shoulder symptoms were diagnosed as mild AC degenerative changes. The Veteran reported that his left shoulder, which was injured twice during service, hurts all the time. He also reported having received an injection in the shoulder and home exercise program in 2009. After examination and interview of the Veteran and review of his medical history, the examiner provided a negative opinion. During his December 2013 Travel Board hearing, the Veteran recalled his left shoulder injuries in service. He also recalled seeking VA treatment within the first year following his discharge, when he was told there was nothing wrong with his left shoulder. The Veteran testified that, although he continued to experience recurrent left shoulder symptoms, he did not seek subsequent postservice treatment until 10 years later, in 2003, because he was engaged in hourly employment and did not have the leave to wait for VA treatment. He further testified that he had to do a tactical shotgun course for his employment as a police officer and, by the last segment of the training, his "shoulder was so fatigued that [he] could barely lift the weapon to [his] shoulder." The Veteran stated that carrying the additional 25-30 pounds of equipment that police officers carry around on a daily basis also puts additional strain on his shoulder. In December 2014, the Board found that the May 2012 opinion is inadequate for rating purposes because it does not address the Veteran's competent allegations of ongoing left shoulder complaints since service. The matter was remanded to obtain another medical nexus opinion. Accordingly, in a March 2015 addendum opinion, the examiner reviewed the Veteran's claims file and opined that the Veteran's left shoulder disorder was less likely as not (less than 50 percent probability) incurred in or caused by his inservice injury because his "assertions do not negate the physical evidence reviewed. They do not alter the [May 2012] opinion." In August 2015, the Board found that the March 2015 addendum opinion is also inadequate because it is conclusory and without explanation of rationale. The matter was remanded for another VA examination and medical nexus opinion. On October 2015 VA examination, which included and interview of the Veteran, review of his medical history, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's left shoulder disorder was incurred in or caused by his inservice injury. In his rationale, the examiner noted the circumstances of the Veteran's left shoulder injury and treatment in service, "both exam and X-rays indicated no pathology" and "no evidence of recurrence for remainder of service" (with exception of left shoulder complaint voiced on service separation.) The examiner further noted that, [f]ollowing service, the [V]eteran was (and remains actively employed) in law enforcement" which requires "continuous rigorous demands of upper extremity conditioning (pushups and pullups) with on-going demonstration of physical performance required for completion of the Police Academy" and that "[t]hese physical demands continue as the aspiring officer remains 'on patrol.'" The examiner also explained that the Veteran's "initial documented complaint following separation from service was not until 16 years later, [on] July 10, 2009." In addition, the examiner noted that the Veteran's most recent left shoulder evaluation had "been three years ago; in the time frame of this appeal" with "[n]o objective evidence of follow-up evaluation since then." Accordingly, the examiner concluded that "[t]here is no nexus for service connection, nor is there evidence of aggravation by service. There is no evidence of [a] chronic on-going condition associated with or aggravation by [the V]eterans military service." Based on the foregoing, it is not in dispute that the Veteran now has a left shoulder disability, to include DJD of the AC joint and mild impingement. It is also not in dispute that he sustained a left shoulder injury in 1991 during his active duty service. However, the record shows that the Veteran's left shoulder injury in service apparently resolved. Specifically, although he complained of left shoulder pain on service separation examination in April 1993, he sought no follow-up treatment after his 1991 injury and the initial post service treatment is not until May 2008, 15 years after service discharge. To the extent that the Veteran attempts to support his claim of service connection for a left shoulder disability by his more recent accounts of continuity of symptoms since service, the Board finds such accounts to be self-serving, inconsistent with contemporaneous clinical data, and not credible. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). There is no evidence that degenerative arthritis of the left shoulder was manifested in the first postservice year. The initial postservice record of left shoulder complaints was in May 2008, when X-ray examination showed degenerative arthritis of both shoulder joints. Consequently, service connection for a left shoulder disability on the basis that such disability became manifest in service and persisted or on a presumptive basis (for arthritis of the left shoulder as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. What remains then is the question of whether, in the absence of a showing of onset in service and continuity since, the Veteran's left shoulder disability may otherwise be related to his remote service (to include the left shoulder injury and treatment noted therein). Whether there is a nexus between a current left shoulder disability, such as DJD of the AC joint and mild impingement, and service or complaints therein, absent evidence of continuity, is a medical question that requires medical expertise, which the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore the Veteran's (and his representative's) opinions that his left shoulder disability is related to his left shoulder injury in service are merely lay speculations and are not competent evidence. They are without probative value in this matter. In fact, there is nothing in the Veteran's postservice treatment records (other than his own reports) that relates his left shoulder disability to his service. Thus, the only competent, and adequate, opinion that directly addresses whether there is a nexus between the Veteran's current left shoulder disability and his service is the opinion of the October 2015 VA examiner to the contrary (the prior VA opinions are inadequate as discussed above). The October 2015 examiner expressed familiarity with the record, addressed the Veteran's competent allegations of ongoing left shoulder complaints since service and provided a clear explanation of rationale. He explained that the documented left shoulder injuries in service resolved without any complications, and pointed to the clinical data to support that finding. He also noted the initial postservice left shoulder treatment many years after service discharge and the "rigorous demands of upper extremity conditioning (pushups and pullups)" required of the Veteran's post service employment as a police officer (which the Veteran corroborated in his December 2013 Travel Board hearing testimony.) As this opinion is by a medical provider, reflects familiarity with the entire record, and includes rationale with citation to supporting factual data, it is probative evidence in the matter. Because there is no probative evidence to the contrary, the Board finds it persuasive. Based on the evidence of record, the Board finds that the weight of the competent and probative evidence is against a finding of relationship between the Veteran's current left shoulder disorder and service. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a left shoulder disorder, and the claim must be denied. ORDER Service connection for a left shoulder disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs