Citation Nr: 18143216 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 10-49 694 DATE: October 18, 2018 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to a temporary total disability evaluation based on hospital treatment, observation, or the need for convalescence following a surgical procedure of the right shoulder is denied. FINDINGS OF FACT 1. The Veteran’s right shoulder disability is not related to service, and is not caused or aggravated by a service-connected disability. 2. Service connection has not been established for right shoulder disability CONCLUSIONS OF LAW 1. Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 2. The criteria for entitlement to a temporary total rating based on the need for convalescence following right shoulder surgery have not been met. 38 U.S.C. §§ 5107 (b), 5110 (2012); 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to September 1975 and from July 1986 to September 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Videoconference hearing in February 2015 before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the electronic claims file. In April 2015, the Board reopened the issue of entitlement to service connection for a right shoulder disability and also remanded this issue as well as the issue of entitlement to a temporary total disability evaluation based on hospital treatment, observation, or the need for convalescence following a surgical procedure of the right shoulder for additional development. In May 2017, the Board again remanded these issues for additional development. 1. Service Connection Laws and Regulations 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran claims that her current right shoulder disability is either a result of service, or secondary to her service-connected cervical spine disability and right arm radiculopathy. She contends that while stationed in Wainwright, Alaska, she often had to shovel snow off roofs due to record-breaking snowfall. She reported that while she complained of and was treated for neck pain around this time, this is also when her right shoulder problem began. The Veteran’s service treatment records document complaints of neck and shoulder pain. The Veteran had right shoulder surgery for a torn rotator cuff in September 2008. The Board notes that pursuant to the April 2015 Board remand, the Veteran was afforded an examination in August 2015. The examiner noted that the Veteran had a rotator cuff tear of the right shoulder in 2008. It was a nearly normal examination of the shoulder and the shoulder x-rays were normal. The examiner opined that the Veteran’s right shoulder disability was less likely than not incurred in or caused by the claimed in-service event or illness and that it was less likely than not that the Veteran’s right shoulder disability was proximately due to or the result of a service-connected disability. The examiner noted that the Veteran’s right shoulder and bilateral hand conditions were caused by discrete injuries and that the injuries were not associated with the neck. The examiner also noted that the Veteran had a normal neck examination with mild degenerative joint disease of the cervical spine on x-rays. As a result, her neck would not impose additional stress on other joints. The Board notes that pursuant to the May 2017 Board remand, the August 2015 VA examiner provided an addendum opinion in November 2017. The examiner again noted that he had previously opined that it was less likely than not that the Veteran’s right shoulder disability was secondarily related to his cervical spine disability. The examiner also opined that it was less likely than not that the Veteran’s right shoulder disability was aggravated by the Veteran’s neck condition or her associated radiculopathy in the right arm. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a right shoulder disability to include as secondary to a service-connected disability is not warranted. As there is a current diagnosis of residuals of a right shoulder rotator cuff tear, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, while the Veteran’s service treatment records demonstrate that the Veteran presented with complaints of neck and shoulder pain, the service treatment records are negative for a chronic right shoulder disability in service. Additionally, the Board also notes that while a June 1992 service treatment record noted pain radiating into the shoulders, these complaints are accounted for as the Veteran is already service-connected for radiculopathy of the bilateral upper extremities as secondary to a service-connected cervical spine disability. Furthermore, the only medical opinion addressing the etiology of the right shoulder disability weighs against the claim. As noted above, the August 2015 VA examiner indicated that it was less likely than not that the Veteran’s right shoulder disability was related to service. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a right shoulder disability is not warranted on a direct basis. Regarding service connection on a secondary basis, the Board notes that the Veteran is service-connected for degenerative disc disease of the cervical spine and radiculopathy of the bilateral upper extremities. However, the Board finds that the weight of the evidence is against a finding that the Veteran’s current right shoulder disability is etiologically related to the Veteran’s military service on a secondary basis. Notably, the only medical opinions addressing the etiology of the right shoulder disability on a secondary basis weigh against the claim as the August 2015 VA examiner on VA examination in August 2015 and in a November 2017 addendum opinion, opined that it was less likely than not that the Veteran’s right shoulder was due to or aggravated by her service-connected cervical spine disability and associated radiculopathy in the right arm. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a right shoulder disability is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). The Board notes the Veteran’s contentions regarding the etiology of her claimed right shoulder disability. To the extent that the Veteran herself contends that a medical relationship exists between her claimed current right shoulder disability and service, the Board acknowledges that the Veteran is competent to testify as to her observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the right shoulder disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and her representative do not have the medical expertise to provide an opinion regarding the right shoulder disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiner provided detailed rationales in support of his opinions and cited to the relevant evidence. For this reason, the VA examiner’s opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). 2. Temporary Total Disability Under the provisions of 38 C.F.R. § 4.30, a total rating will be assigned effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following hospital discharge or outpatient release if the treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The evidence of record reflects the Veteran underwent right shoulder surgery in September 2008. However, as discussed above, entitlement to service connection for the Veteran’s right shoulder disability is not warranted on a direct or secondary basis. 38 C.F.R. §§ 3.303, 3.310. The provisions of 38 C.F.R. § 4.30 specifically establish that a temporary total convalescence rating will be assigned if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence. As the right shoulder has not been awarded as a service-connected disability, entitlement to a temporary total convalescence rating may not be established under the provisions of 38 C.F.R. § 4.30. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel