Citation Nr: 1800156 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-02 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to December 1977 and from February 1978 to January 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. Jurisdiction of the Veteran's case presently resides with the RO in Anchorage, Alaska. In December 2015, the Veteran testified at a Video Conference hearing before the undersigned; a transcript of which is associated with the record. In June 2016, the Board granted the Veteran's petition to reopen his claim for entitlement for service connection for a neck injury. The Board additionally remanded the Veteran's claims for service connection for neck and psychiatric disorders for further evidentiary development, to include VA examinations and opinions, and for readjudication. In the December 2013 VA Form 9, the Veteran, in part, perfected appeals for his neck and acquired psychiatric disorder claims. In the August 2016 rating decision, service connection was awarded for the Veteran's cervical strain with degenerative disc disease and for other specified depressive disorder. As this rating decision granted the full benefits sought with respect to these issues of service connection, these claims are no longer before the Board. FINDING OF FACT The weight of the evidence does not demonstrate that the Veteran has a current right shoulder disability that is related to service. CONCLUSION OF LAW Service connection for a right shoulder disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria A. Duty to Notify and Assist VA is obliged to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability or persistent or recurrent symptoms of disability; (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) the evidence indicates that the current disability or symptoms may be associated with service or a service-connected disability; but (4) there is insufficient medical evidence on file to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In both McLendon and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Court of Appeals for Veterans Claims (Court) and the U.S. Court of Appeals for the Federal Circuit clarified that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with his service). The Veteran has not been provided a VA examination for his right shoulder claim. However, the Board concludes that an examination and medical opinion are not needed to fairly decide this claim, as the record contains no competent and credible evidence suggesting that a claimed right shoulder disability may be etiologically associated with service. Thus, the second and third McLendon elements are not satisfied with respect to this claim. The Board recognizes that the Court in McLendon held that the third element establishes a "low threshold," and that a VA examination can be required based on medical evidence merely suggesting a nexus, but that is too equivocal or lacking in specificity to support a decision on the merits. However, even considering this low threshold, there is no medical evidence that even suggests such a nexus. Instead, the medical evidence suggests the Veteran's current right shoulder disability is due to a post-service gunshot injury to the shoulder. Further, the Veteran's lay statements regarding the origins of his right shoulder disability have been inconsistent; a such they lack credibility and have no probative value. In addition, the Veteran has been reported by several medical professionals to be a poor historian and/or misrepresenting his distress. Thus, on their own, his statements do not satisfy the third element in McLendon. Notably, in June 1993 the Veteran advised VA that he had lost the use of his right arm and shoulder in July 1988, in reference to a post-service shotgun wound that affected this area. Since July 2010, however, the Veteran has reported to VA that his right shoulder disability is related to an in-service assault and/or his service-connected traumatic brain injury. Therefore, a remand is not required under McLendon. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Further, any opinion offered under these circumstances necessarily would be based on a contention that has not been substantiated, which, in turn, would tend to undermine the probative value of the opinion. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). B. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg); (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Factual Background In an August 1976 enlistment examination, the Veteran's musculoskeletal system was found to be normal. In a report of medical history from this time, the Veteran denied any musculoskeletal conditions. In STRs from August 1977, the Veteran was noted as having been in a fight where he was struck with a baseball bat. It was observed that he had a mild cerebral concussion. Two days later, he was discharged to duty. Other records from this time noted that the Veteran had consumed alcohol and incurred head injuries while the Charge of Quarters attempted to subdue him. When he was brought in for treatment following this head injury, the clinician noted that the Veteran was either sleeping or semiconscious. Further examination was deferred as the Veteran was noted to allegedly become violent. The day following the injury, it was observed that the Veteran was not communicative, and that he had a strong odor of alcohol on his breath. He was diagnosed with being intoxicated on alcohol and with a concussion. Three days after the head injury, it was noted that the Veteran experienced post concussion headaches. In the August 1977 separation examination, the Veteran's musculoskeletal system was found to be normal. In a report of medical history from this time, the Veteran denied any musculoskeletal conditions. In a January 1978 enlistment examination, the Veteran's musculoskeletal system was found to be normal. In a report of medical history from this time, the Veteran denied any musculoskeletal conditions. It was noted that the Veteran denied any significant medical history other than indicated in this report of medical history. In a January 1979 separation examination, the Veteran's musculoskeletal system was found to be normal. In a report of medical history from this time, the Veteran denied any musculoskeletal conditions. In a September 1981 statement, the Veteran reported that while stationed in Germany, he was struck on the neck from behind by another soldier. The Veteran learned of this attack when he later awoke in the hospital. In a private medical discharge summary from the beginning of July 1988, the Veteran was noted to have been shot, in part, in the right arm and shoulder with a shotgun near the end of the prior month. In a June 1993 statement, the Veteran claimed, in part, that he incurred "severe gunshot wounds" of the upper torso area, and that his right arm and shoulder had "restrictions to normal movements." In a claim from this month, the Veteran indicated that he lost the use of his right arm due to these injuries. In a February 2003 prison medical record, the Veteran complained of shoulder pain that was related to prior bullet wounds. In a February 2008 VA medical record, the Veteran complained of chronic recurring neck pain, but denied any radiation into his shoulders or arms. He denied any loss of strength. In an April 2008 statement, the Veteran advised that he was disabled with "some other injuries" which he believed were related to neck and throat conditions related to service. In an August 2008 VA mental health note, the Veteran reported that once he owed a shop owner for beer, and that the shop owner fractured the Veteran's skull with a shotgun. The Veteran then returned home to get his bus, which he then drove into the shop owner's store. The Veteran reported that he was shot in the shoulder by someone attempting to stop him from driving his bus through the store. In an October 2009 private medical record, the Veteran was noted to have chronic right arm swelling as a result of a prior shotgun wound from 1986. In a December 2009 private medical record, review of an X-ray showed no evidence of a right shoulder fracture or dislocation. It was observed that there was a previous buckshot injury. In the June 2010 VA traumatic brain injury examination, the Veteran was noted to have right shoulder degenerative joint disease that was not due to traumatic brain injury. In a June 2010 statement, the Veteran's mother, in part, reported that one time the Veteran drove his brother's bus into a villager's home, with the intent to hurt the villager and his family. The villager shot the Veteran in the arm and in the chest. In July 2010 the Veteran claimed that he had a right shoulder disability that was related to his service-connected traumatic brain injury. In a January 2011 VA orthopedic examination, the Veteran was noted to have a normal sensory examination and normal strength despite gunshot wound-related scarring on his right shoulder. Upon repetitive use testing, there was no further loss of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. In a February 2011 statement, the Veteran reported that after he was struck with a baseball bat in service, he woke up several days later and had memory difficulties. He believed that he received additional baseball bat blows to his body, in addition to his head/neck. After he was discharged for his head/neck injury the Veteran observed that he had bruises, in part, on his shoulders and arms, and felt pain all over his body. He did not tell the doctor about his shoulder and arm pain because he was "so tired and hurt from the headache." In an April 2011 SSA disability determination, the Veteran stated that he has experienced right shoulder pain since an assault with a bat in the 1970s and a shotgun wound from 1988. No radiculopathy was noted. Shoulder X-rays were normal except for scattered buckshot in the surrounding soft tissues. In an SSA psychological examination from this time, the Veteran was observed with his right arm in a sling. He reported that this was related to long-term complications from a shotgun wound. He was observed as poor historian. In a December 2012 VA neuropsychology consultation, the Veteran reported that he was struck across the back of the head with a baseball bat. It was noted that his memory of events after this blow were unclear, but he believed that there may have been additional blows while he was on the ground. His next memory was from two to three days later after he was discharged from treatment. It was noted that neuropsychological evaluation was discontinued due to objective evidence of difficulties putting forth optimal effort, and likely misrepresentation of distress. In the February 2013 notice of disagreement, the Veteran asserted, in part, that his right shoulder injury was related to his in-service neck injuries. He stated that he believed that his shoulder condition was "nerve related," and that such testing was not performed at the VA examination. In the December 2013 VA Form 9, the Veteran claimed, in part, that his right shoulder condition was related to his in-service injury. He claimed that he was struck several times with a baseball bat on several areas on his body, to include the shoulders and arms. He reported that he was unconscious for two to three days due to this attack. He still experienced pain from this event. At the December 2015 hearing, the Veteran testified that he was attacked by another soldier in 1977 and struck several times with a baseball bat. Following the attack he became unconscious and was admitted to hospital. He remained unconscious for two to three days. When he was released, he could not feel anything but a headache. He observed bruises on his back, but did not report them. In the August 2016 VA cervical spine examination, muscle strength regarding the right elbow flexion, and extension were normal. Likewise, his right wrist flexion and extension was normal. Sensation to light touch over the shoulder area, inner/outer forearm, and the hand and fingers was normal. The Veteran was not found to have any radicular pain or any other signs or symptoms due to same. He was observed to have no other neurological abnormalities related to his cervical spine disability. In a November 2016 VA traumatic brain injury examination, it was noted that the Veteran had normal motor activity. The residuals of his traumatic brain injury were noted as migraine headaches. No other pertinent physical findings, scars, complications, conditions, or signs and/or symptoms were found. Based on the Veteran's performance in neuropsychological evaluations, they were discontinued because there was objective evidence that the Veteran had difficulties putting forth optimal effort and likely misrepresented his distress. III. Analysis Upon consideration of the foregoing, the Board finds that service connection for a right shoulder disability is not warranted as the preponderance of the evidence demonstrates that the Veteran does not have a current right shoulder disability that is related to service. As an initial matter, the Board observes that the Veteran has presented two potential causes for his claimed right shoulder disability to VA. In June 1993, the Veteran reported that he had incurred "severe gunshot wounds" in reference to post-service injuries from June 1988. In July 2010 he claimed that his right shoulder disability was related to his service-connected traumatic brain injury, and in February 2011 he reported that in addition to the baseball bat blow to his head/neck, he was struck on other areas of the body, to include the shoulders and arms. The Board acknowledges that the Veteran is competent to describe symptoms or injuries that he experienced in service, or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. See 38 C.F.R. § 3.159. However, to the extent the Veteran has indicated as to where he was allegedly beaten in service with a baseball bat while unconscious, such assertions are not competent evidence. This is because the Veteran, by his statements, did not directly perceive such injuries. Further, the competent and credible medical evidence does not support that the Veteran was struck/beaten upon the right shoulder or arm at the time of his assault. Notably, the STRs contemporaneous to the Veteran's in-service assault and documenting his treatment after this incident only noted head injuries, not shoulder injuries. Further, the Board does not find that the Veteran's statements regarding an in-service occurrence of a right shoulder injury to be credible. This is because the Veteran's statements from 2010, and onwards, were inconsistent with his initial June 1993 claim regarding the cause/onset of his right shoulder symptoms; they were inconsistent with the other evidence of record, including the Veteran's military records, which do not support the occurrence of an in-service right shoulder injury at the time of his concussion; and the Veteran on several occasions was observed as a poor historian in the medical records. See generally Caluza v. Brown, 6 Vet. App. 498 (1995). The Board observes that in the June 2010 VA traumatic brain injury examination, the examiner noted that the Veteran had right shoulder degenerative joint disease, although it does not appear that that diagnosis was based upon a review of X-rays. In an April 2011 SSA disability determination, upon review of X-rays, the Veteran's right shoulder was noted as normal except for scattered buckshot in the surrounding soft tissues. The Veteran's currently diagnosed right shoulder disability, which is supported by the competent and credible medical record, is residuals of a shotgun wound, to include retained foreign bodies in the soft tissues of the shoulder and scarring. The competent and credible evidence, including medical evidence, demonstrates that this injury did not occur during a period of active duty service, but approximately nine years after the Veteran's last separation from service. Service-connection is not warranted for disabilities due to physical injuries that did not occur during a period of active duty, active duty for training purposes, or inactive duty for training purposes. As the preponderance of the evidence is against the finding that the Veteran's right shoulder disability was incurred in service, service connection is not warranted. The Board acknowledges the Veteran's claims that he has a current right shoulder disability that is related to service. The Board also notes that the Veteran and his representative have provided arguments regarding his claimed diagnoses and potential nexuses in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran has a service connected right shoulder disability that is related to service or to a service connected disability) falls outside of the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given the complexity of the medical question at issue in this matter, including the intercurrent gunshot wound to the right shoulder, the Veteran or his representative, who have not been shown to have medical training or experience, are not competent to opine as to the etiology of any claimed right shoulder disability. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). The etiology of a shoulder disability is a matter of medical complexity, and, therefore, the Veteran and his representative's statements as to the diagnosis and etiology of any such condition do not constitute probative evidence in the matter. Thus, to the extent that any lay statements (or any medical evidence based on his lay statements) assert that the Veteran has a right shoulder disability related to service, they are not competent evidence in support of his claim. In sum, the preponderance of the evidence is against the finding that Veteran has a current right shoulder disability that is related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b). As such, service connection is not warranted. ORDER The appeal seeking service connection for a right shoulder disability is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs