Citation Nr: 1800429 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 05-18 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for right shoulder disability. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty from July 1966 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. The Veteran presented testimony during two hearings before two different undersigned Veterans Law Judges (VLJs) of the Board. The Veteran testified at Board hearings in June 2011 at the RO and in June 2017 via videoconference. Transcripts of the hearings are associated with the record. The Board will proceed to review the issue addressed herein by the undersigned panel of three judges. This case was previously before the Board in April 2014 where it was remanded for additional evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDING OF FACT A chronic right shoulder condition was not shown in service or for many years later; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed degenerative joint disease of the right shoulder is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran, nor his representative has raised any 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 a duty to assist argument). Further, a review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. II. 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.A. §§ 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. Id. 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. Id. A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). 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)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Right Shoulder Disability The Veteran seeks service connection for his right shoulder condition which he contends had onset in service or is otherwise etiologically related to service. See June 2017 Hearing Transcript pp. 6-7. Service treatment records reflect that the Veteran was seen for bursitis of the shoulder in June 1979 and in July 1979, but records are silent as to any injury which caused the bursitis. Subsequent annual physical examinations of record show normal clinical findings for his upper extremities. See Reports of Medical Examination dated September 1980, September 1981, August 1982, October 1985, and April 1986. The Veteran also denied having shoulder issues in corresponding medical reports. On separation, the Veteran's shoulder was again found clinically normal. See Report of Medical Examination dated April 1986. In fact, the Veteran reported no symptoms and indicated that the condition resolved. See Report of Medical History dated April 1986. Approximately 22 years after separation, in August 2008, private treatment records reflect the Veteran's report of pain in his neck and right shoulder. An MRI revealed evidence of cervical spondylosis and cervical radiculitis. See Records from Thomas Hospital and Physicians Pain Specialists of Alabama. Hospital records of September 2008 reflect that the Veteran was involved in a motor vehicle accident and treated for complaints of mild pain in the neck and right shoulder. X-rays revealed degenerative joint disease of the cervical spine. He was diagnosed with a neck sprain. See Thomas Hospital records. Private treatment records of November 2008 show a diagnosis of radiculitis of the right shoulder which the private treating physician noted was exacerbated by the September 2008 motor vehicle accident. Id. Private treatment records of August 2009 reflect a diagnosis of cervical radiculopathy and chronic pain, with notes of decreased strength in the right upper extremity. See Records from Mobile Surgery Center. Private treatment records of March 2010 reflect that an MRI scan was taken the Veteran's cervical spine. The treating physician commented that the Veteran's right arm symptoms of pain and weakness correlate with C3-4 and 4-5 disk pathology. See Records from Baldwin Bone and Joint PC. At a November 2011 VA examination for his shoulder condition, the Veteran reported that his symptoms were mostly in the neck and not the shoulder. After physical examination, he was diagnosed with "right shoulder bursitis - resolved". X-rays revealed degenerative changes of the acromioclavicular of both shoulders. The examiner commented that the equal changes in both shoulders suggest that "etiology of AC changes are related to aging alone." The examiner also noted there are no current medical records that demonstrate ongoing shoulder issues or condition. See Shoulder and Arm Condition Disability Benefits Questionnaire (DBQ) dated November 2011. In June 2015, the Veteran was afforded another VA examination. The examiner found that the right shoulder bursitis "resolved" with "no functional impairment." The examiner opined that degenerative joint disease of the right shoulder was a "condition of aging" and not associated with soft tissue bursitis. In the rationale, he also pointed out that degenerative joint disease was noted bilaterally in 2011 X-ray. Further, the examiner found that the degenerative joint disease was not caused by or related to service or the bursitis in service. See Shoulder and Arm Conditions DBQ dated June 2015. Upon review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for right shoulder disability. In so finding, the Board acknowledges that the Veteran's treatment records confirm current diagnoses of degenerative joint disease of the right shoulder. See November 2011 and June 2015 VA examination reports. But, concludes that there is no competent medical evidence relating the current disorder to service. As the determinative issue involves the etiological connection between service and the current disability, competent medical evidence is required. In this regard, the Board finds the VA examinations of November 2011 and June 2015 constitute the most probative medical evidence of record. After a thorough review of the claims file, conducting diagnostic testing and physical examination, the VA examiners found there was no reliable evidence linking the Veteran's current degenerative joint disease of the right shoulder to service. See November 2011 and June 2015 VA examination reports. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Both VA examiners pointed out that the Veteran's right shoulder bursitis has, in fact, resolved with no residuals. As to the etiology of the Veteran's current degenerative joint disease, the examiners agreed his shoulder condition is due to "aging alone" and not associated with soft tissue bursitis or related to service. The Board notes that the Veteran's private treating physician also remarked that the Veteran's right arm symptomatology was attributable to his cervical spine, which was aggravated by a September 2008 motor vehicle accident where the Veteran sustained a neck strain. Further, the Veteran's subjective complaints are not supported by objective medical evidence, as there are no medical records documenting an ongoing shoulder condition. In sum, there is simply no medical evidence of an etiological relationship between the Veteran's current degenerative joint disease of the right shoulder to service. The Board observes that the VA opinions stand uncontradicted by any other evidence found in the record and are probative in determining whether the Veteran has substantiated his claims for service connection. Alternatively, though degenerative joint disease may be considered a chronic disease for VA purposes, arthritis was not clinically shown to a compensable degree within one year following the Veteran's discharge from service as required. See 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that degenerative joint disease of the right shoulder manifested to a compensable degree within one year following the Veteran's discharge from service. Id. Therefore, service connection for the Veteran's right shoulder condition associated with degenerative joint disease is not warranted on a presumptive basis. 38 C.F.R. §§ 3.303(b), 3.307. Lastly, the Board recognizes the Veteran's contentions that his right shoulder condition is related to service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, to the extent that he seeks to establish a nexus between the current right shoulder disability and in-service right shoulder bursitis or onset in service, the Board finds lay witnesses are not competent to opine on such medical questions of etiology as this requires medical expertise. See Davidson v. Shinseki, 581 F.3d 1313 (2009). For this purpose, the Board finds the Veteran's statements are not competent medical evidence. Therefore, his assertions, standing alone, have little probative value and the Board assigns more weight to the medical opinions provided by the VA examiners. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection of right shoulder disability to include degenerative joint disease. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. T. MAINELLI THOMAS H. O'SHAY Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs