Citation Nr: 1756541 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-19 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1990 to May 1991; he also served in the Army Reserve and National Guard with a period of active duty for training from March 1985 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In March 2011, the Veteran failed to appear at a scheduled hearing before the Board. Without good cause shown for the failure to appear, the Veteran's request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). In January 2014 and June 2016, this issue was remanded to the Agency of Original Jurisdiction (AOJ). There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. FINDING OF FACT A right shoulder disability was not manifest during service or within one year of separation from service, and is not otherwise related to service. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board previously remanded this matter in January 2014 and June 2016. With respect to the issue decided, the Board instructed the RO to obtain any outstanding treatment records, schedule the Veteran for a VA examination, obtain an addendum opinion, and readjudicate the claim. The claims file contains the requested outstanding evidence and the Veteran was scheduled for and attended an April 2014 VA examination. The claims file also contains the requested addendum opinion, which was added to the record in June 2016. The RO readjudicated the claim most recently in a June 2016 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been substantial compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran's representative submitted an informal hearing presentation in November 2017, contending that the April 2014 VA examination and June 2016 addendum opinion were inadequate because the examiner failed to address chronicity of symptoms. Both the U.S. Court of Appeals for Veterans Claims (Court) and the Federal Circuit have held, however, that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox that "the Board is entitled to assume the competence of a VA examiner." Id. at 569 (citations omitted). Absent evidence or argument which called in to question a VA examiner's professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent. Id. See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). Neither the Veteran nor his service representative have raised a specific challenge to the professional medical competence or qualifications of the VA examiner who provided the April 2014 VA examination and June 2016 addendum opinion. The Board finds that the examiner is competent and will assign appropriate probative weight to the opinion. As explained in greater detail below, the Board finds that VA's duty to assist with respect to obtaining an adequate VA examination has been met as to the issue being decided. 38 C.F.R. § 3.159(c)(4). The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. III. Service connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 CFR 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). The Veteran contends that he is entitled to service connection for a right shoulder disability. The Veteran is currently diagnosed with mild degenerative joint disease of the right shoulder. See April 2014 VA examination report. He was also diagnosed with minimally displaced scapular fracture in April 2009. Id. The Veteran's service treatment records (STR) reveal that in January 1991 the Veteran reported riding over rough terrain and injuring his right shoulder and neck. In February 1991, the Veteran was medically evaluated for bilateral trapezius pain and shoulder pain. May 1991 medical records reveal that the right shoulder pain was due to pain "radiating" to right shoulder and right arm and not due to a primary shoulder condition. There was no indication of a right shoulder joint injury and no chronic right shoulder condition found. The Veteran was diagnosed with a bilateral trapezius strain in March and May 1991. March 1991 X-ray testing and April 1991 MRI testing found no abnormalities. For the purposes of separation, the Veteran completed a Report of Medical History, however, that report is undated. He reported neck pain due to a pinched nerve, but reported that he did not have a painful shoulder or elbow, arthritis, or bone, joint, or other deformity. In March 1993, the Veteran applied for compensation due to lumps on his neck and numbness on both his arms and hands. The Veteran did not mention right shoulder pain. The Veteran was afforded a VA examination May 1993. He told the examiner that he began experiencing knots in 1990 in his neck area, though none were present during the examination. The Veteran did not mention pain in his right shoulder. April 1994 VA treatment records reflect that the Veteran sought medical care for knots in his right supraclavicular area, and reported that his right arm felt tired at times. No diagnosis was provided for the Veteran's right shoulder. In May 1994 VA treatment records, the Veteran was diagnosed with reactive lymphadenopathy due to bad teeth. March 2001 VA treatment records reflect that the Veteran sought medical care for pain in his back, left elbow, and right hip. He did not mention and pain in his right shoulder. February 2005 VA treatment records demonstrate that the Veteran sought treatment for new neck pain and shoulder pain, with pain mainly concentrated in the neck. March 2005 VA treatment records show that the Veteran denied any pain during an examination. January 2008 VA treatment records reflect a diagnosis of a rotator cuff sprain in shoulder, however, the shoulder affected is not specified. Different January 2008 VA treatment records reflects that the Veteran reported chronic neck pain that radiated to his right shoulder. The Veteran denied any injuries and reported that the neck pain had been occurring for one month. February 2008 VA treatment records reflect that the Veteran reported recent right shoulder pain, which had started to flare up. He also reported that he had longstanding right shoulder pain at this time. The Veteran was evaluated for right shoulder arthritis in January 2009. VA treatment records reflect that a right shoulder X-ray was negative. There was no evidence of fracture, dislocation, arthritis, or calcific tendinitis. March 2009 VA treatment records document treatment sought after the Veteran fell from a truck onto his right shoulder. An X-ray revealed minimal displacement of the inferior part of the right scapula without a complete separation. The Veteran was afforded a VA examination in April 2014. The Veteran reported that he consistently worked out, including performing multiple sets of push-ups and sit ups. He also told the examiner that following separation, he worked in physically demanding occupations in various types of employment. The examiner performed an in-person examination and reviewed the Veteran's medical history. The examiner specifically reviewed the Veteran's January 1991 in-service incident that resulted in a neck and right shoulder injury. She noted that a cervical X-ray performed two months following the incident revealed no abnormalities. The examiner concluded that the Veteran's current right shoulder arthritis was less likely than not related to his service. She reasoned that the shoulder pain described by the Veteran around the time of the January 1991 incident was more consistent with right upper extremity radiculopathy. She explained that the way the Veteran described the right shoulder pain during that time was the result of a strain to the neck, which radiated pain down to the right shoulder. She further explained that this conclusion was supported by the negative January 2009 X-ray of the Veteran's right shoulder. The examiner noted that the Veteran's right shoulder arthritis was not revealed until October 2013 VA treatment records. The examiner determined that the Veteran's years of physically demanding occupations, weight lifting, and history of falls post-service, where most likely the causes of the Veteran's current right shoulder disability. Pursuant to the June 2016 remand instructions, a VA addendum opinion was added to the record in June 2016. The examiner again concluded that the Veteran's right shoulder arthritis was less likely than not related to his service. She went on to explain that periodic right shoulder pain reflected in the Veteran's medical records prior to 2009 were consistent with radicular pain, and not due to a shoulder joint condition. She stated that this was further supported by a statement the Veteran made in January 2008 VA treatment records, in which he told the treating physician that he experienced chronic right sided neck pain for over 15 years which sometimes radiated into his right shoulder. The Board has considered the assertion of the Veteran's representative in a November 2017 Appellant Brief that the VA opinion was inadequate because it relied on an absence of treatment. To the contrary, however, the Board believes that the VA examiner specifically discussed the Veteran's documented history of complaints during and following service, but explained that the earlier complaints and clinical findings were distinct in nature from those related to his current right shoulder arthritis. The Board finds that, in the aggregate, the April 2014 VA examination and June 2016 addendum opinion are adequate to decide the claim. The examiner noted the Veteran's lay statements, and medical history, along with her clinical observations. The examiner acknowledged the Veteran's January 1991 in-service incident, but reasoned that the Veteran's years of physically demanding occupations, weight lifting and history of falls post-service, where most likely the cause of the Veteran's current right shoulder disability. She also explained the origins of the Veteran's prior right shoulder pain, and stated how it was unrelated to the Veteran's current right shoulder disability of arthritis. Therefore, the Board finds that the opinions in aggregate are sufficient to decide the claim because the Veteran's lay statements were considered and the Veteran's entire medical history was taken into consideration. The Board has also considered the general statements of the Veteran that his right shoulder disability is the result of his time in service. In that regard, individuals can attest to factual matters of which he or she has first-hand knowledge and the Veteran's assertions regarding his January 1991 in service incident is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although 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 arthritis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In light of the foregoing, the Board affords the medical opinions of record significantly greater probative weight. Additionally, as right shoulder arthritis did not manifest to a compensable degree until 2013, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) for chronic diseases are not applicable. The Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs