Citation Nr: 18141539 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-22 565 DATE: October 10, 2018 ORDER Service connection for gout is denied. Service connection for a total right shoulder replacement with osteoarthritis is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The evidence demonstrates that there was no event, injury, or disease that caused gout during active, or otherwise qualifying service, nor is there competent evidence of record linking a current disability of gout to military service. 2. The evidence demonstrates that there was no event, injury, or disease that caused for a total right shoulder replacement with osteoarthritis during active, or otherwise qualifying service, nor is there competent evidence of record linking a current disability of total right shoulder replacement with osteoarthritis to military service. 3. The evidence demonstrates that there was no event, injury, or disease that caused hypertension during active, or otherwise qualifying service, nor is there competent evidence of record linking a current disability of hypertension to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gout have not been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for entitlement to service connection for a total right shoulder replacement with osteoarthritis have not been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101, 106, 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps (USMC) from July 1980 to June 1983, and was on active duty in the Air National Guard from July 2001 to November 2002. The issues are on appeal from a March 2013 rating decision. Service Connection Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. 3.303. Under 38 C.F.R. 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; 38 C.F.R. 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24) (West 2012); 38 C.F.R. § 3.6(a) and (d) (2017). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.304 (b), 3.306, 3.307, 3.309 (2017). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). As noted above, however, such presumption is not applicable to periods of ACDUTRA or INACDUTRA. 1. Service connection for gout The Veteran contends that his gout is related to his service and/or active duty. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, the Veteran has a diagnosis of gout, satisfying Shedden element (1). However, the preponderance of the evidence is against finding that it began during active duty, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records from his period of service with the USMC, and while he was on active duty with the Air National Guard, are silent for complaints of or treatment of gout. Private treatment records showed a diagnosis of and treatment for gout, beginning in 2009. In September 2012, the Veteran was afforded a General Medical VA examination. Here, he was diagnosed with gout. Per the Veteran’s report, the gout began in 2007. The examiner opined that the gout did not affect the Veteran’s ability to work. Based on the medical evidence, the Board finds that the Veteran’s gout is not due to an in-service injury, event, or disease. Although the Veteran was diagnosed with gout while a member of the Air National Guard, the condition was not diagnosed during an active duty period or ACDUTRA, nor was any disease or injury shown during such period to cause gout. No injury was noted during periods of INACDUTRA. Medical records showed the earliest diagnosis of gout was in 2009. No medical professional causally relates the diagnosis to any period of service; at most the tie is temporal because the conditions arose while a member of the National Guard, and not on any duty status. As to the Veteran’s general contention that his gout was incurred in or is otherwise related to some period of service, and began in 2001, the Board finds his opinions to be of no probative weight. In light of the foregoing and the Veteran’s lack of education, training, and experience in regards to diagnosing gout and relating such disability to some period of service, the Board affords his representations no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that the preponderance of the evidence is against a claim for gout. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Service connection for a total right shoulder replacement with osteoarthritis (right shoulder disability) The Veteran contends that his right shoulder disability is due to his military occupational specialty (MOS) duties that required him to install communications towers while as a member of the National Guard. He described having to climb structures and hoist ropes, tools, and equipment to working height, by hand. Again, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, the Veteran has a diagnosis of a right shoulder disability, satisfying Shedden element (1). However, the preponderance of the evidence is against finding that it began during active duty, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records from his period of service with the USMC are silent for complaints of or treatment of a right shoulder disability. Air National Guard service treatment records showed complaints of right shoulder pain starting in 2009. Private treatment records showed complaints of and treatment for right shoulder pain. In March 2009, the Veteran underwent a MRI that was negative for rotator cuff tear; 15-millimeter superior posterior perilabral cyst; and degenerative changes and periarticular edema at the acromioclavicular joint. The Veteran also reported that his right shoulder pain began 30 years prior while playing football in high school; and that the pain had gradually worsened over the past decade. Additional private treatment records showed various radiographic images of the right shoulder. In May 2011, a letter between two treating physicians stated that x-rays of the right shoulder showed considerable narrowing of the acromioclavicular joint, to the point where it was bone-to-bone, and that the right shoulder had deteriorated compared to an EMG of the right shoulder from 2009. Further, the physician stated that the Veteran was still a member of the Air National Guard, but no longer performed heavy physical work. Service treatment records showed that the Veteran underwent a total right shoulder surgery in August 2011. Radiographic imaging after the surgery showed that the right total shoulder prosthesis was in good position and in alignment without evidence of osteolysis. In the September 2012 General Medical VA examination, the Veteran was diagnosed with degenerative joint disease of the right shoulder. The Veteran reported that the onset of his right shoulder issues began in 2000, with no specific trauma, and heavy use during service time. The examiner opined that heavy physical work demanding use of the right arm would be limited due to a decrease in range of motion and post-operative pain. Based on the medical evidence, the Board finds that the Veteran’s right shoulder disability is not due to an in-service injury, event, or disease. The Veteran has provided two different dates for the onset of right shoulder pain – while playing football in high school and in 2000. However, service treatment records from his time of USMC service and active duty with the Air National Guard, do not show complaints of any right shoulder disability. The earliest medical record of right shoulder issues is in 2009, which is seven years after his separation from active duty. Although the Veteran was diagnosed with a right shoulder disability while a member of the Air National Guard, the condition was not diagnosed during an active duty period or ACDUTRA, nor was any disease or injury shown during such period to cause it. No injury was noted during periods of INACDUTRA. No medical professional causally relates the diagnosis to any period service; at most the tie is temporal because the conditions arose while a member of the National Guard, and not on any duty status. As to the Veteran’s general contention that his right shoulder disability was incurred in or is otherwise related to some period of service, and began in high school or 2000, the Board finds his opinions to be of no probative weight. In light of the foregoing and the Veteran’s lack of education, training, and experience in regards to diagnosing a right shoulder disability and relating such disability to some period of service, the Board affords his representations no probative weight. Jandreau, 492 F.3d at 1372. In sum, the Board finds that the preponderance of the evidence is against a claim for a right shoulder disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 3. Service connection for hypertension The Veteran contends his hypertension is related to his service and/or active duty. Again, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, the Veteran has a diagnosis of hypertension, satisfying Shedden element (1). However, the preponderance of the evidence is against finding that it began during active duty, or is otherwise related to an in-service injury, event, or disease. Service treatment records showed that the Veteran had high blood pressure beginning in March 2004, and that he was prescribed Lotrel. Evaluations and other records prior to March 2004 showed that the Veteran denied having high blood pressure, or did not report experiencing high blood pressure. Further, no medical professional diagnosed the Veteran or treated him for hypertension prior to March 2004. A private treatment record from March 2010 showed that Lotrel was successfully controlling his hypertension. In the September 2012 General Medical VA examination, the Veteran was diagnosed with hypertension. According to the Veteran, he had been treated for hypertension since 2001. Based on the medical evidence, the Board finds that the Veteran’s hypertension is not due to an in-service injury, event, or disease. Although the Veteran was diagnosed with hypertension while a member of the Air National Guard, the condition was not diagnosed during an active duty period or ACDUTRA, nor was any disease or injury shown during such period to cause them. No injury was noted during periods of INACDUTRA. Per the Veteran’s own report, the onset of his hypertension was in 2001. However, the Veteran’s service treatment records, which included various evaluations, showed that the Veteran did not report a diagnosis of hypertension or experiencing symptoms of hypertension; nor did any medical professional diagnose him with hypertension until March 2004, two years after his separation from active duty. No medical professional causally relates the diagnosis to any period service; at most the tie is temporal because the conditions arose while a member of the National Guard, and not on any duty status. As to the Veteran’s general contention that his hypertension was incurred in or is otherwise related to some period of service, and began in 2001, the Board finds his opinions to be of no probative weight. In light of the foregoing and the Veteran’s lack of education, training, and experience in regards to diagnosing hypertension and relating such disability to some period of service, the Board affords his representations no probative weight. Jandreau, supra. In sum, the Board finds that the preponderance of the evidence is against a claim for hypertension. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel