Citation Nr: 1806243 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-13 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1974, and from August 1979 to July 1997. This appeal is before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified at a September 2015 videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In June 2017, the Board remanded the issue on appeal to the Agency of Original jurisdiction (AOJ) in order to obtain Social Security Administration (SSA) disability records. The above-referenced development has been completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran had complaints of left shoulder symptoms in service, which resolved prior to service separation. 2. The current left shoulder disability was not incurred in service, is not otherwise related to service, did not manifest within one year of service separation, and was not caused or aggravated by the service-connected right shoulder disability. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Required notice was provided by letters dated in December 2006 and July 2009. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service medical records and VA treatment records have been obtained, as have relevant private medical records identified by the Veteran. In July 2009 and March 2015, the Veteran was afforded VA examinations in connection with the claim for service connection on appeal. VA also obtained a medical report from a Veterans Health Administration (VHA) physician in March 2016 regarding the Veteran's claimed left shoulder disability. The examination and VHA opinion reports are adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection for a Left Shoulder Disability Service connection may be granted 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(a). Service connection requires: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks service connection for a left shoulder disability. He asserts that the current left shoulder disability started in service due to years of missions, push-ups, and sit-ups. Alternatively, the Veteran contends that the left shoulder disability was caused or aggravated by the service-connected right shoulder disability. He advanced that because the right shoulder was injured, he overused the left shoulder which caused or aggravated the left shoulder disability. The record reflects that the Veteran has a current left shoulder disability. See, e.g., March 2015 VA examination report. For the reasons set forth below, the Board finds that the evidence weighs against a finding that the Veteran's left shoulder disability was incurred in service, is otherwise related to service, or was caused or aggravated by the service-connected right shoulder disability. Service treatment records (STRs) show complaints of bilateral shoulder pain in February 1996, March 1996, July 1996, and December 1996. The Veteran was assessed with bilateral bicipital tendinitis, while rotator cuff tendinitis was ruled out. The April 1997 service separation examination report shows an assessment of right biceps tendonitis and right rotator cuff tendonitis, but did not indicate any left shoulder problems. This evidence shows that the in-service left shoulder injury or complaints of left shoulder symptoms resolved prior to service separation. A March 2015 VA examination report includes a review of the Veteran's medical history and his complaints. It was opined that the claimed left shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that: Review of the [V]eteran's STRs shows complaints and evaluation on the left shoulder consistent with the diagnosis of bicipital tendonitis. The range of motion of the left shoulder during service is not suggestive of rotator cuff tear. [The Veteran] worked as a stocker for a few years immediately after service, a job that requires repetitive lifting and reaching for objects overhead and a job that cannot be performed by someone with rotator cuff tear. Therefore, the [V]eteran's rotator tear and degenerative arthritis on the left shoulder is more likely than not a post service condition. A July 2009 VA examination report includes a review of the Veteran's medical history and his complaints. It was opined that the Veteran's left shoulder disability is less likely than not related to the service-connected right shoulder disability. The VA examiner reasoned that "[i]n my experience, shifting use of the shoulders, and given the type of work that the [V]eteran has had in the past, I do not feel that enough pressure could have been placed on the left shoulder to have caused rotator cuff problems." As to the question of whether the service-connected right shoulder disability aggravated the left shoulder, VA obtained a VHA opinion in March 2016. It was opined that it is not at least as likely as not that the Veteran's left shoulder condition has been aggravated by the right shoulder condition. The VHA examiner provided the following reasoning: I do not believe there is an increase in the severity of [the Veteran's] left shoulder condition that is proximately due to or the result of his right shoulder disability and that is not due to the natural progress of the left shoulder condition. I do believe that it is possible that the service-connected right shoulder condition . . . may have temporarily resulted in overuse of the left shoulder, but I do not believe this would have aggravated or caused his current left shoulder condition. The VHA examiner provided a review of the Veteran's service and post-service left shoulder complaints and treatment, to include MRIs of the left shoulder in January 2005 and April 2006 showing a significant rotator cuff tear. The VHA examiner also noted that, after service discharge, the Veteran worked as a stocker at a hardware store, a convenience store, and Walmart. The VHA explained that: It is probable that the [the Veteran] would have compensated for his right shoulder problems by using the left shoulder more frequently during the symptomatic episodes with his right shoulder. However, I do not believe that the compensatory use of the left shoulder . . . would not have resulted in the current condition of a massive rotator cuff tear with severe atrophy. It is my opinion, based upon my experience and training, that overuse or compensatory activities result in tendonitis (i.e., rotator cuff tendonitis) not the structural lesion (i.e. massive rotator cuff tear that [the Veteran] has developed. Furthermore, it is not reasonable to expect rotator cuff tendinitis to progress to a massive rotator cuff tear without a traumatic event or significant progression of shoulder impingement. The previous diagnosis of bicipital tendonitis (1996/1997) would not progress to the reported rotator cuff tears in the supraspinatus and infraspinatus tendons. The Board finds that, taken together, the July 2009 and March 2015 opinions, along with the March 2016 VHA opinion, are highly probative with respect to service connection for a left shoulder disability, and are adequately based on objective findings as shown by the record, and accordingly, the Board concludes that the medical opinions rendered were based upon a full and accurate factual premise, including the Veteran's history, and provided a thorough and adequate rationales for the opinions given. See Stegall v. West, 11 Vet. App. 268 (1998); Barr, 11 Vet. App. at 311; Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that, taken together, the July 2009 and March 2015 opinions, along with the March 2016 VHA opinion, provide competent, credible, and probative evidence which shows that the current left shoulder disability was not incurred in service, is not otherwise related to service, and was not caused or aggravated by the service-connected right shoulder disability. The Board has considered and weighed a September 2006 statement by Dr. A.D., who noted that the Veteran had increasing amounts of left shoulder internal derangement and impingement that he had for the previous several months, and purported to relate the left shoulder disability to the service-connected right shoulder disability. However, Dr. A.D. did not provide an adequate rationale for this opinion. Accordingly, the Board finds that the September 2006 private opinion purporting to link the left shoulder disability to the service-connected right shoulder disability is of no probative because it is not supported by an adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion that is unsupported by a coherent rationale is of no probative value); see also Jones, 23 Vet. App. 382. Finally, as the Veteran's left shoulder arthritis has not been shown to have manifested within one year of service separation, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable in this case. For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran's left shoulder disability was incurred in service, is otherwise related to service, manifested within one year of separation, or was caused or aggravated by the service-connected right shoulder disability. Accordingly, service connection for a left shoulder disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left shoulder disability, to include as secondary to the service-connected right shoulder disability, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs