Citation Nr: 1802962 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-33 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a left shoulder disability, to include as due to Gulf War service and exposures therein. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty for training from September 1981 to December 1981 and September 1982 to December 1982 and active duty from November 1990 to July 1991 and February 1996 to April 2000, to include service in Southwest Asia. The Veteran also served on full time National Guard Duty in an Active Guard/Reserve status under 32 U.S.C. § 502 from February 1989 to February 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in May 2015 and May 2017 where it was remanded for additional development. It has since been returned for further appellate review. FINDING OF FACT The probative, competent evidence is against a finding that the Veteran's left shoulder disability is related to active duty service. CONCLUSION OF LAW The criteria for establishing service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Under 38 C.F.R. § 3.317, service connection may also be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. The Board finds that there is a current disability for service connection purposes. The Veteran's original claim for service connection for a left shoulder disability was denied by the RO in April 2000, finding no current disability for service connection purposes. A private orthopedic treatment record dated August 2010 notes a diagnosis of left shoulder acromioclavicular joint arthritis and a labral tear. Finding that new and material evidence had been submitted (specifically, the diagnosed left shoulder disability), the Veteran's claim was reopened by the Board in May 2015. It is noted at this juncture that the Veteran's September 2009 claim to reopen his left shoulder disability denial suggested the theory that his disability was due to Gulf War service and exposures therein. However, as the Veteran's left shoulder arthritis and labral tear is neither an undiagnosed illness nor a chronic multisymptom illness, nor is it one of the diagnosed illnesses that warrant presumptive service connection, it is not a qualifying disability for the purposes of 38 C.F.R. § 3.317. Service treatment records (STRs) are silent for any symptom of or treatment for any continuing left shoulder disability, to include all reports of medical examination and reports of medical history. While the Board acknowledges a July 1980 treatment record noting a complaint of pain in the Veteran's left anterior deltoid area, a mild sprain was assessed and noted as resolving. No joint abnormality was noted. Although the STRs also contain multiple notes in 1993 by orthopedic specialists and physical therapists, these records appear to be related solely to the Veteran's currently service-connected right shoulder disability. Further, in a report of medical history at separation in February 2000, the Veteran only reported a history of problems with his right shoulder. At a VA general medical examination in March 2000 following service separation, crepitus (popping) was noted in the Veteran's left shoulder, however no specific diagnosis of a disability was found. As arthritis is not shown to be present during service or in the year following separation from service, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The first treatment for left shoulder pain after separation from service was the aforementioned August 2010 private treatment record. Diagnostic testing revealed slight degenerative changes in the acromioclavicular joint. Based on the Veteran's reported history of shoulder pain, the private physician stated that his military service "could have contributed to his situation." The Veteran was afforded a VA examination in connection with his claim the following July 2011. The Veteran reported that his left shoulder began bothering him in about 1989 or 1990, but did not recall a specific injury. He also reported a significant increase in left shoulder symptoms in the years he worked in part time construction following service. The VA examiner opined that the Veteran's left shoulder disability was less likely as not caused by or a result of active service. The examiner explained that the Veteran's separation examination, while noting the presence of other joint symptoms, was negative for left shoulder problems, and his medical records were silent for left shoulder complaints until 2010. The examination report and opinion also noted that a thorough orthopedic examination of the left shoulder in 2006 was normal, and while a private treatment record from 2009 noted multiple joint complaints, none were related to the left shoulder. Pursuant to Board remand, the Veteran underwent an additional VA shoulder examination in June 2017. The examiner opined that it was less likely than not that the Veteran's left shoulder condition incurred in or was caused by an in-service injury, event, or illness. The VA examiner explained that the Veteran's service treatment records from 1991 through retirement in 2000 were negative for any left shoulder symptoms or conditions - including evaluations and examinations by orthopedic specialists and physical therapists - and that it would be very unlikely that a left shoulder condition would have been overlooked throughout those years since the left shoulder would have been used as a comparison in joint evaluations and treatment plans. He also explained that the 2010 diagnostic images indicting "minimal" arthritic change and a labral tear would have been common for a man of the Veteran's age. As to the opinion of the Veteran's private orthopedist at the time of the initial diagnostic findings, the examiner noted that, in stating that military service "could have contributed" to the disability, the 2010 opinion was "non-committal" and without any apparent review of the Veteran's medical records. Based on the foregoing, the Board finds the preponderance of the evidence is against the Veteran's claim. There is no probative medical evidence showing a left shoulder disability until 2010, many years after the Veteran's military service. The August 2010 statement from the private provider that the Veteran's military service "could have contributed to his situation" is speculative at best and does not offer a definitive opinion. In contrast, the VA examiners reviewed the file, including the August 2010 statement from the private provider in the case of the most recent examiner, and provided well-reasoned explanations for why the left shoulder disability is not related to service. These opinions are the most probative evidence of record and weigh against the claim. Simply put, while the Veteran has a current left shoulder disability, the medical evidence indicates that it is not related to his service. While the Veteran believes that his current left shoulder disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a shoulder disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his shoulder disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current shoulder disability is not competent medical evidence. The Board finds the opinion of the VA examiners to be significantly more probative than the Veteran's lay assertions. In making this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, this doctrine is not for application and service connection must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a left shoulder disability, to include as due to Gulf War service and exposures therein, is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs