Citation Nr: 1751055 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-31 547 ) DATE Advanced on the Docket ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right shoulder disorder. WITNESS AT HEARING ON APPEAL The Veteran ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. A left shoulder disorder was not present during the Veteran's service; arthritis was not manifested within one year of discharge from service, and did not develop or worsen as a result of any incident during service. 2. A right shoulder disorder was not present during the Veteran's service; arthritis was not manifested within one year of discharge from service, and did not develop or worsen as a result of any incident during service. CONCLUSIONS OF LAW 1. A left shoulder disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. A right shoulder disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the VA Regional Office (RO) in Providence, Rhode Island. In August 2015, the Veteran testified at a hearing conducted before the undersigned. A transcript of the hearing has been associated with the claims file. Following the hearing, the case was remanded for further development in October 2015 and April 2016. The Veteran has submitted new evidence, which relates to the issues on appeal. He specifically waived his right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). 1. VA's Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Analysis To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b) when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., arthritis) may be also presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2017). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that he has a bilateral shoulder disorder that is related to an in-service motor vehicle accident when he was thrown off a truck. See, e.g., June 2011 claim; August 2016 Hearing Transcript (T.) at 2-3. The question for the Board is whether the current diagnosis of acromiclavicular (AC) joint osteoarthritis is related to the Veteran's military service. The Board finds that based on a review of the competent, credible, and probative evidence, service connection for a bilateral shoulder disorder is not warranted. In this cases, the preponderance of the evidence weighs against a finding that a currently diagnosed bilateral shoulder disorder is directly related to the Veteran's military service. The Veteran's service treatment records (STRs) include his July 1943 enlistment examination, which revealed normal extremities. A November 1945 record shows that the Veteran fell from a truck, injuring his face. A December 1945 abstract of medical history record shows that the Veteran had multiple face lacerations in November 1945. No mention of any shoulder complaints with regards to this accident was made. The Veteran's February 1946 separation examination again revealed normal extremities; no shoulder complaints were made. A buddy statement received in January 1963 discussed the in-service motor vehicle accident. This statement shows that the Veteran incurred injuries to his left eye, nose, left side of forehead, abrasions on left hand, and the loss of a front tooth. There was no mention of any shoulder injuries. Post-service treatment records have shown left shoulder complaints beginning in 2011. Records dated in February 2011 indicate that the Veteran reported having pain in his left shoulder that had been present for two weeks. He denied any trauma, heavy lifting, and having had pain before. X-rays showed degenerative joint disease. The only right shoulder complaint is in an April 2015 record documenting bilateral shoulder pain. None of his records contain any opinion relating a currently diagnosed bilateral shoulder disorder to his military service. The Veteran was provided a VA examination in October 2015. He was diagnosed with acromiclavicular (AC) joint osteoarthritis. He reported having bilateral shoulder pain since the 1950s. The examiner opined that it was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. However, the rationale provided indicated that the bilateral shoulder disorder was not related to the Veteran's military service. An addendum opinion from the examiner was obtained in July 2016. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran's STRs made no reference to shoulder conditions. They discussed the buddy statement, which also made no references to shoulder injuries. The examiner also noted that the subsequent available medical records made no references to shoulder conditions. The examiner summarized that there were no reference to shoulder conditions in the STRs, buddy statements, or the immediate post-service medical records/VA claims. The examiner concluded that, based on the available records, it was difficult to associate the Veteran's current bilateral shoulder diagnoses with military service; it was less likely than not that the bilateral AC arthritis was incurred in or caused by military service. A Veterans Hospital Administration (VHA) opinion was obtained in July 2017. The physician reported that it did appear that the Veteran was involved in an accident in November 1945. They noted that they saw no mention of shoulder injury in the Veteran's separation physical from February 1946, nor any mention of shoulder injury in the buddy statement. The physician discussed the February 2011 record noted above. They opined that, after review of the documents, there was no doubt the Veteran had a diagnosis of bilateral AC osteoarthritis. They opined that they did not believe it was directly related to or caused by the claimed in-service injury. The rationale was that they could not find any medical or non-medical documentation of shoulder complaints until the Veteran was well into his 80s. They noted that AC arthritis was a very common condition affecting a significant percentage of the population over the age of 50. The physician concluded that the Veteran's AC osteoarthritis was more likely than not associated with the normal aging process and activity level over the years. No medical professional has provided any opinion relating a bilateral shoulder disorder to the Veteran's military service. The most probative opinion of record, the July 2017 VHA opinion, shows that a currently diagnosed bilateral shoulder disorder is not related to the Veteran's military service. As the opinion was formed after reviewing the evidence; considers the Veteran's statements regarding his reported in-service injury; and is supported by rationale, the Board accords it great probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file). This opinion is also uncontradicted. The opinion is supported by the February 1946 separation examination, which showed normal extremities. The Board acknowledges the Veteran's August 2017 statement that he did not have an exit examination, but this is clearly contradicted by the evidence of record including such an examination report. In this case, the contemporaneous service records and post-service treatment records all fail to show that the onset of any current bilateral shoulder disorder began during service or is otherwise related to his military service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Here, the first documented evidence of shoulder complaints is not until 2011. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of bilateral shoulder complaints, symptoms, or findings for over six decades between the Veteran's military service and the earliest evidence of bilateral shoulder complaints is itself evidence which tends to show that a bilateral shoulder disorder did not have its onset in service or for many years thereafter. Furthermore, as the evidence does not show that the Veteran had arthritis manifest to a degree of 10 percent or more within one year of discharge, the Board finds that service connection on a presumptive basis is not warranted. Similarly, the Board also finds that the evidence does not establish a continuity of symptomatology and therefore a nexus under Walker, as arthritis is a chronic disease as per 38 C.F.R. § 3.309. As already discussed above, the Veteran's separation examination showed normal extremities, and no associated complaints were made. The contemporaneous evidence of record at the time of the Veteran's separation from service weighs against a finding of a continuity of symptomatology. See Curry at 68. The overall evidence of record weighs against a finding of a bilateral shoulder disorder being associated with the Veteran's active duty. Without an equipoise in the evidence showing an association between a bilateral shoulder disorder and the Veteran's active duty, service connection for a bilateral shoulder disorder is not warranted. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). As to the specific issue in this case, the etiology of a bilateral shoulder disorder, the question involved is medically complex, and accordingly the Board assigns greater weight to the VHA physician's opinion that has not related a bilateral shoulder disorder to his military service than to the Veteran's own lay opinions. The Veteran has not been shown to possess the training, credentials, or other expertise to render an opinion that is of comparable probative value to that of the VHA physician. See Jandreau at 1377 n.4. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral shoulder disorder. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a bilateral shoulder disorder is denied. See 38 U.S.C.A § 5107 (West 2014). ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Barstow, Counsel Copy mailed to: Massachusetts Department of Veterans Services Department of Veterans Affairs