Citation Nr: 1753788	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  11-34 260	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for a left shoulder disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Timmerman, Associate Counsel







INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Veteran served on active duty in the Air Force from August 1960 to August 1964. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office in Pittsburg, Pennsylvania.

In October 2016, the Board remanded the issue of service connection for a left shoulder disability to obtain additional records and a VA examination. Updated records were obtained by the Agency of Original Jurisdiction (AOJ) in November 2016, and a VA examination and opinion was obtained in January 2017.  There is no evidence that additional examinations are in order or that any relevant records have yet to be requested. Thus, there has been substantial compliance with the Board's prior remand instructions, and an additional remand is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In May 2017, the RO issued a supplementary statement of the case, after which the Veteran submitted additional evidence, namely a June 2017 private medical examination and opinion. The Veteran waived his right to have the case remanded to the AOJ for initial review of this evidence. 38 C.F.R. 20.1304(c).


FINDING OF FACT

The most probative evidence weighs against the finding that the Veteran's current shoulder disability had its onset in or is otherwise related to his service.

CONCLUSION OF LAW

The requirements for establishing service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking service connection for a left shoulder disability. He contends that the shoulder pain he currently experiences is the result of two in-service shoulder injuries: a fall from a telephone pole during basic training, and a pulled muscle later in service. The Veteran claims that his current shoulder problems may have started as early as the late 1960's. Nevertheless, the preponderance of the evidence is against finding that he is entitled to service connection for a left shoulder disability.

Service connection may be established for any disability resulting from a disease or injury incurred in or aggravated by service, or for any disease diagnosed after discharge when the evidence establishes that the disability itself was incurred in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a), (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The nexus to a current disability may be established presumptively for certain chronic diseases, such as arthritis, if the disease manifests in service, or to a degree of 10 percent disability within a year from the date of separation from service. 38 U.S.C. § 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). Nexus for a chronic disease may also be established where the disease was not diagnosed as chronic in service, if the Veteran experiences continuous symptoms between service and the time of the current diagnosis of a chronic disease. 38 C.F.R. § 3.303(b).

The Veteran has been diagnosed with osteoarthritis of the shoulder during the claim period, establishing a current disability. Furthermore, service treatment records indicate that in November 1960 the Veteran slipped coming down from a telephone pole and suffered abrasions on his right arm and left leg. The Board finds credible the Veteran's claim that he also hurt his left shoulder in this accident. Service treatment records also indicate that the Veteran pulled a muscle in his shoulder in March 1961. Together, these incidents establish the incurrence of an in-service injury.

The only remaining question is whether the evidence establishes a nexus between the Veteran's current shoulder disability and his in-service shoulder injuries, or as the Veteran has been diagnosed with arthritis, whether service connection may be established based on the chronic disease presumption.

The Board finds that the preponderance of the evidence is against the finding of a nexus between the Veteran's current disability and his in-service injuries. The Veteran's separation examination did not note any shoulder abnormalities, and the Veteran checked "no" next to "painful or 'trick' shoulder or elbow." The earliest post-service indication that the Veteran was having shoulder pain is a July 2000 order for an x-ray of the Veteran's left shoulder to rule out fracture or dislocation, and noting a history of a fall. A December 2000 x-ray report states that there are no significant degenerative changes in the Veteran's left shoulder as of that date. Mild degenerative changes in his shoulder first appear in an October 2010 x-ray. In November of that year, upon reporting that he had noticed an increasing left shoulder pain over the past six months, the Veteran began receiving cortisol shots for his pain. He continued to receive shots intermittently through at least May 2015. 

A January 2017 VA examination and opinion confirmed the diagnosis of osteoarthritis of the shoulder, but found that the condition was less likely than not related to or caused by the Veteran's in-service injuries. The Veteran told the examiner that he thought he had begun having trouble with the shoulder in the late 1960's, but he was not sure. The examiner reasoned that since the Veteran was uncertain when, following his two in-service injuries, his left shoulder pain began, and because there were no mentions of left shoulder pain on the Veteran's separation examination or on records available to the examiner stretching back into the early 1980's, there was no nexus between his in-service injuries and his present shoulder condition.

The Veteran subsequently submitted the progress notes from a private examination. The private examiner opined that post-traumatic arthritis can occur after an injury, and that the Veteran's current pain may be related to his in-service fall. However, the examiner also noted that the Veteran's records do not document a distinct shoulder joint injury or fracture.

The Board finds the opinion of the VA examiner to be more probative than the private examiner's conclusion that the Veteran's pain "may be" related to his in-service fall. Medical opinions that use indeterminate language such as "possible," "may," or "can be" are speculative, and cannot suffice to support a claim. Bostain v. West, 11 Vet. App. 124, 127-28 (1998); McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The VA examiner's opinion, on the other hand, states unequivocally that the Veteran's present shoulder condition is less likely than not related to his in-service injuries, and provides a detailed rationale based on the particulars of the Veteran's claims file and medical records. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Finally, there is no indication that the Veteran's current shoulder arthritis manifested within one year of his separation from service in August 1964, or that he experienced continuous symptoms after discharge. The Veteran's separation exam contains no indication of shoulder problems, and according to the Veteran, he began noticing trouble with his shoulder at the earliest in the late 1960's. Furthermore, the medical evidence indicates that he first received treatment for his left shoulder in 2000, thirty six years after service. Therefore, the chronic disease presumption does not apply, and there is no continuity of symptomatology. See 38 U.S.C. § 1112(a); 38 CFR §§ 3.303(b), 3.307, 3.309(a).

Therefore, because there is no indication that the Veteran's shoulder disability was caused by or is otherwise related to his in-service shoulder injuries, nor that his disability may fall under the chronic disease presumption, the competent and credible evidence of record does not approach a state of equipoise, and the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Instead, the preponderance of the evidence weighs against the Veteran's claim, and service connection for a left shoulder disability must be denied.


ORDER

Service connection for a left shoulder disability is denied.



____________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs