Citation Nr: 1805971 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-01 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 until September 1976, from January 1977 until February 1981, and from December 1984 until September 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issue on appeal was remanded in June 2015 by the Board for a medical examination/opinion and further development. In a November 2015 decision the Board denied the Veteran's claim for entitlement to service connection for a left shoulder disability. In response to the November 2015 decision denying the claim, the Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In November 2016, the Court granted a Joint Motion Remand (JMR) filed by the parties, which requested a vacatur and remand of the November 2015 decision addressing the claim. The appeal was returned to the Board for appropriate action, and in May 2017, the Board remanded this matter for further development, to include gathering of medical records and an addendum opinion. The required development having been completed, this matter is now before the Board once again for adjudication. FINDING OF FACT The preponderance of the evidence is against a relationship or correlation between the Veteran's active duty service and his left shoulder disability. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131 1154 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1). In December 2011, the RO mailed the Veteran a VCAA letter detailing the evidentiary requirements of a service connection claim, the evidence that the Veteran should send to VA, and VA's responsibilities to assist the Veteran. The Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). While the Board recognizes the November 2015 decision was vacated in a November 2016 Joint Motion for Remand (JMR) approved by the Court, the Board finds that the development undertaken since then has resolved any deficiencies previously found. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). The Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in December 2011, July 2015 and June 2017. Based on the examinations and the records, the VA medical examiners, with the exception of that in July 2015, were able to provide adequate opinions. However, the most current opinion is found to be adequate. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran. Service Connection - Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). Analysis The Veteran claims he has a current left shoulder disability which was caused by his service. Pursuant to a review of the Veteran's VA examinations and his service treatment records, the Board finds that the Veteran has both a current left shoulder disability as well as an in-service injury of his left shoulder. As VA has conceded that the first two required Shedden elements have been established, the only remaining element required, that of a nexus between the in-service injury and the current disability, warrants discussion. The Board finds, as discussed below, that the competent, credible evidence of record is against a finding of a nexus between the current disability and the in-service disease or injury, or, of continuity of symptoms. The Veteran's service treatment records show that he was treated for left shoulder pain in 1977, 1979 and 1980. Specifically, in July 1977, an anterior muscle strain was documented. Also, an injury to the left shoulder is documented in October 1979, reflecting a left shoulder muscle strain while playing football. While decreased range of motion and tenderness were found on examination, x-rays were negative. In June 1980, the Veteran sustained another strain to his left shoulder while pulling in a line. He was diagnosed with a shoulder strain and chronic subacrominal bursitis. Indeed, the Veteran reported in his December 1980 separation examination that he sometimes has pain in his left shoulder. However, after 1980, the Veteran's service treatment records are silent as to any complaints or treatment of a left shoulder condition. In fact, examinations in 1983 and 1984 were negative for any left shoulder conditions. In October 1986, a treatment note shows treatment for medial shoulder pain. In November 1997, a report of medical history reflected that the Veteran had no painful joints or a painful shoulder. This was 11 years after the last shoulder complaint of record. Following active service the first treatment note of record for the Veteran's left shoulder is an April 2001 VA record, where the Veteran reported left shoulder pain since service. This was approximately three years after separation from service and approximately 15 years since his last recorded in-service left shoulder complaint. A May 2001 treatment note also shows that the Veteran's shoulder pain was relieved with a subacromial injection. X-rays document a history of left shoulder pain and reflect early degenerative changes of the glenohumeral joint. In May 2009, eight years after his last post-service shoulder treatment note, the Veteran reported a pop in his shoulder after lifting an object at work. A history of chronic shoulder pain was noted. Three years later, in October 2011, the Veteran submitted a claim for service connection of a left shoulder disability. Pursuant to his claim, the Veteran was afforded an October 2011 VA examination to assess the nature and etiology of his left shoulder condition. The Veteran was confirmed to have a shoulder strain. Also identified was a mild to moderate degenerative change at the glenohumeral joint. Pertinently, the examiner opined that it is less likely than not that the Veteran's left shoulder condition is related to his in-service complaints. The examiner explained that the Veteran's subacrominal impingement is more likely a result of his occupation as a line operator involving such tasks as lifting, pushing and pulling for 10 years. The examiner also indicated that the last time the Veteran was seen was three years prior to the examination for a muscle strain, and that the current condition is the result of overuse and natural degeneration. The next medical evidence of record is a July 2015 VA examination. Again, the examiner opined that it is less likely than not that the Veteran's current left shoulder condition, which was diagnosed as left shoulder impingement with degenerative joint disease (DJD), is a result of the left shoulder strain that he sustained in service. The examiner's rationale was that the Veteran's left shoulder disability appeared to be a new injury not related to his military service. The examiner attributed the Veteran's current disability to an injury he sustained in approximately 2000. The basis for this conclusion was a 2001 VA treatment record where the Veteran's left shoulder condition was reported to have had its onset a year earlier, approximately two years after his military service. Based in part on the July 2015 examination, the Board denied the Veteran's claim of entitlement to service connection for a left shoulder condition in a November 2015 decision. As previously mentioned, the Veteran appealed this decision to the Court, and a Joint Motion for Remand (JMR) was agreed upon and approved. The matter was remanded because the parties found that the July 2015 VA examination the Board relied on in its November 2015 decision was inadequate. Specifically, the parties found that the examiner's opinion was based on an inaccurate factual predicate, as it failed to recognize that the Veteran's initial in-service left shoulder in jury was an anterior muscle strain in July 1977. It also failed to consider an October 1986 treatment note reflecting that the Veteran was treated for pain in his medial shoulder upon palpation. Furthermore, the parties found that the Board erred when it failed to discuss the Veteran's May 2009 treatment of his shoulder condition, and did not explain why it rejected favorable medical evidence. This favorable evidence includes the Veteran's report of left shoulder pain since service in an April 2001 VA treatment note and a May 2001 x-ray study documenting a clinical history of left shoulder pain, along with the 2011 VA examination reflecting mild to moderate degenerative change at the glenohumeral joint. Pursuant to the Joint Motion for Remand, the Board, in turn, remanded the Veteran's claim for further development in May 2017, to include obtaining a new, accurate and adequate VA opinion. The requested development was completed, and of record is a June 2017 VA opinion. The opinion is shown to have been based upon a review of the entire claims file, including all available medical records. The Board notes that the examiner produced a detailed review of the Veteran's in-service and post-service medical history, including the 1977 and 1986 records which were not adequately considered in the prior examination. As regards the Veteran's July 1977 left shoulder injury with anterior muscle strain, the examiner reviewed the available information and concluded that it was an acute injury which resolved. The October 1986 treatment record was also reviewed, and shows that the Veteran indeed had pain on the medial shoulder upon palpation. However, the record also reflects that the Veteran's muscles in his back rhomboid region were rigid, and the Veteran was only diagnosed with costochondritis of the rib. The examiner assessed upon review that this was indeed a rib/chest condition, and not a left shoulder condition. Also addressed were the April and May 2001 shoulder treatment records. The examiner noted that in 2001, it was the Veteran's testimony, as documented by his treating orthopedic surgeon, that his shoulder condition had its onset one year prior, which was two years after separation from service. The examiner further observed that the evidence established that between 2001 and 2011, the Veteran developed left shoulder impingement. The examiner explained that shoulder impingement is a separate and distinct condition to the in-service shoulder strain. Pertinently, the examiner opined that it is less likely than not that the Veteran's current left shoulder condition, left shoulder impingement with degenerative joint disease, is a result of the left shoulder strain he sustained in service. The examiner's rationale is extensive. First, he supports his opinion by indicating that there is no evidence that any left shoulder condition persisted after 1980, and more specifically, that there is no evidence of chronic problems with the shoulder after 1980. Second, the examiner points to the Veteran's re-enlistment examinations in 1983 and 1984, which are both negative for any left shoulder condition. Third, the examiner indicates that a review of periodic evaluations in the Veteran's service treatment records from 1984 to 1998 shows that they are negative for a left shoulder complaint. Fourth, the examiner points out that the October 1986 treatment the Veteran received was due to a rib/chest disorder, and not a left shoulder problem. Fifth, the Veteran reported in 2001 that his shoulder condition had its onset one year prior, two years after separation; the examiner concluded that he sustained a new injury in 2001, which was not the result of his in-service injury 20 years earlier. Finally, the examiner noted that while the Veteran filed a claim for service connection of several conditions in 1999, he did not file the left shoulder claim until later. Upon review of the evidence of record, the Board finds that the competent and credible evidence of record does not support a finding that the Veteran's current left shoulder disability is connected to his active service, or that it manifested to a compensable degree within one year from service. Instead, the evidence reflects that the Veteran's left shoulder disability had its onset, at the earliest, approximately two years after his active military service. Also, none of the post-service medical records contain any indication that the Veteran's left shoulder disability, which was noted years after separation from active service, is related to such service or to any injury therein. In fact, while two years elapsed from the Veteran's separation from service and the first post-service indication of a shoulder injury, over 21 years elapsed from the last in-service complaints of and treatment of the shoulder. A lengthy interval of time between service and initial post service manifestation of a disability for which service connection is sought is, of itself, a factor against a finding that the disability was incurred or aggravated in service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Although the Veteran contends that his left shoulder disability is related to service, including injury from football therein, as a layperson, without any demonstrated expertise concerning the etiology of left shoulder disability, he is not competent to provide a medical opinion regarding such a medical nexus. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the Board finds the 2017 VA opinion not only to be adequate, but also to be the most probative evidence of record, as it addresses the entire claims file record, including the particular evidence which the Board and the 2015 examination previously failed to adequately consider, per the November 2016 JMR. Indeed, the Board finds persuasive the examiner's review of the July 1977 muscle strain, which had resolved; the May 2009 record reflecting a history of shoulder pain when the Veteran reported a work related injury; and the April 2001 treatment record and May 2001 x-ray report along with the 2011 VA examination which reflected left shoulder impingement, which the examiner specifically found to be a distinct and unrelated condition to the in-service shoulder strain. As only sporadic treatment for a left shoulder injury is shown, as well as treatment for a distinct injury starting two years after service, as shown above, continuity of symptomatology is not demonstrated here, either by the clinical record or by the Veteran's own statements. Also as noted above, there is no medical evidence of nexus between the in-service injury and the current condition. The June 2017 VA opinion was based on a comprehensive review of the record and was accompanied by a clear rationale. Importantly, no other competent evidence of record refutes the opinion. Indeed, the June 2017 VA examiner provided a clear and persuasive explanation as to why the facts establish that the Veteran's current left shoulder disability is less likely than not related to any in-service injury. As the preponderance of the evidence is against the claim under the applicable theories of service connection under 38 C.F.R. § 3.303 (b) and (d), the benefit of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). ORDER Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs