Citation Nr: 1750102 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 11-14 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for rotator cuff tear, left shoulder, postoperative (left shoulder disability). 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include residuals of hiatal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to February 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2012, the Veteran testified at a travel Board hearing before the undersigned. A copy of the transcript has been associated with electronic claims folder. FINDINGS OF FACT 1. The Veteran's degenerative joint disease (DJD) of the left shoulder was not manifested in service or within the one year following separation, and is not related to his military service. 2. The Veteran's DJD of the right shoulder was not manifested in service or within the one year following separation, and is not related to his military service. 3. The Veteran does not have a back disability that is related to an injury or disease in service. 4. The Veteran's GERD is not related to an injury or disease in service. CONCLUSIONS OF LAW 1. The Veteran's DJD of the left shoulder was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The Veteran's DJD of the right shoulder was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 3. The Veteran's back disability was not incurred in or was not otherwise related to active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2015); 38 C.F.R. § 3.303 (2016). 4. The Veteran's GERD was not incurred in or was not otherwise related to active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2015); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a March 2009 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2016). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service VA and private treatment records, and VA examination reports. Accordingly, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). The Veteran contends that he is entitled to service connection for a bilateral shoulder disability, a back disability and GERD. In that regard, the Veteran contends that the wear and tear from jumping from planes during service and being a welder caused his orthopedic disabilities. He also contends that he suffered from indigestion during service which he has treated continuously with over the counter antacids. The Veteran testified at the Board hearing that he had constant abuse to his shoulders during service and he might have torn or bruised them. He testified that he received cortisone steroids in the late 1980s/early 1990s. He also testified that he had surgery on the left shoulder in 2009 and was scheduled to have surgery on the right shoulder due to another tear. In order to obtain service connection under 38 U.S.C.A. §§ 1110, 1131 (West 2015) and 38 C.F.R. § 3.303 (a) (2016) a Veteran must satisfy a three element test: (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 - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection on a presumptive basis is also warranted for certain chronic diseases, including arthritis. 38 C.F.R. §§ 3.307, 3.309. There is evidence of current disabilities, namely DJD of the bilateral shoulders, lumbosacral strain and GERD. Service treatment records indicate that in 1983 the Veteran was treated with Mylanta for stomach problems and Tylenol for complaints of aches. Therefore, this satisfies the requirement of an in-service incurrence. However, the Board finds that there is no causal relationship between the Veteran's current disabilities and any in-service incurrences. Private treatment records in 1993 indicate that the Veteran complained of right shoulder pain but denied any past history of shoulder problems. VA treatment records in 1993 indicate that the Veteran reported a history of hiatal hernia. The Veteran was afforded VA examinations in connection with his claims in 2014 and addendum medical opinions were obtained in 2017. The examiners noted the Veteran's medical history and lay statements and found that it was less likely than not that the Veteran's bilateral shoulders, back or GERD disabilities were related to active service. The examiners reasoned that the Veteran's separation reports revealed normal back, shoulders and abdomen. A 2014 x-ray report of the right shoulder was normal; a 2009 x-ray of the left shoulder revealed mild arthritis; a 2014 x-ray of the back revealed mild spondylosis without degenerative changes and a 2009 CT of the abdomen revealed a normal GI tract. The examiner noted the Veteran's reports of in-service symptoms and reported continuous symptoms post service, but found that the absence of diagnosed disabilities in service or for many years post service weighed against a finding that the Veteran's disabilities were attributable to service. All in all, the examiners found that there was no evidence of active disabilities during active duty. The Board finds the VA examination reports highly probative. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners considered the objective evidence, i.e. medical reports, and the subjective evidence, i.e. the Veteran's lay reports, and concluded that the Veteran's disabilities were not related to active service. The Board has also considered the Veteran's statements regarding his conditions. A Veteran is competent to report symptoms which are observable through his five senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report his symptoms and when they began. He is not competent, however, to report the etiology of his DJD, GERD or lumbosacral strain, which was diagnosed by complicated medical testing and a medical specialist. There is no evidence that the Veteran possesses the requisite medical knowledge to provide such an opinion. Finally, the Board observes that service connection may be awarded on a presumptive basis for certain disabilities such as arthritis that become manifested within a proscribed period following active military service. 38 C.F.R. §§ 3.307, 3.309. In this case, however, the Veteran's arthritis was not initially manifested within a year following service. Rather, the first evidence of a diagnosis is around 2009, over 20 years after separation from service. Given that the Board has found the unfavorable March 2017 VA medical opinions to be the most probative evidence of record, the preponderance of the evidence is against the Veteran's claims for service connection, and the claims must be denied. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A §5107 (West 2015). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for GERD, to include as residuals of hiatal hernia, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs