Citation Nr: 18145592 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-27 320 DATE: October 29, 2018 ORDER Entitlement to service connection for degenerative joint disease (DJD) right shoulder (claimed as right shoulder disability) is denied. FINDING OF FACT The Veteran’s right shoulder disability is not etiologically related to any disease, injury, or event in service nor was the shoulder disability manifested to a compensable degree within one year of discharge from service. CONCLUSION OF LAW The criteria for service connection for a right 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 The Veteran served in the U.S. Army from June 1976 to March 1977. This case comes before the Board of Veteran’s Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, MO, denying the Veteran’s claim for service connection for a right shoulder disability. The Veteran appealed and perfected her appeal to the Board in VA Form 9 in June 2016. 1. Duties to Notify & Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran has raised any issues with the duty to notify. 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). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, Veteran has not identified any post-service records that have not been requested or obtained. A November 2013 Request for Information shows the VA requested the Veteran's service treatment records (STRs). A May 2014 Report of General Information shows that the Records Management Center reported that apart from one relevant service treatment record, the Veteran’s STRs from her duty station were deemed to have been lost or destroyed. Thus, further efforts to locate the Veteran’s STRs would be futile. The Veteran was notified of this by way of a May 2014 correspondence. 38 U.S.C. § 5103(a) (2012). VA advised the Veteran that she could submit copies of STRs in her possession and corroboration in the form of “buddy statements” from fellow service members as to the occurrence of her claimed in-service injury. See Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004); see also Garlejo v. Derwinski, 2 Vet. App. 619, 620-21 (1992). In such cases, where service treatment records have been lost or destroyed through no fault of the Veteran, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis in this case has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). 2. DJD right shoulder The Veteran contends that she is entitled to service connection for a shoulder disability which was caused by her military service. Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including degenerative joint disease, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, there is no presumed service connection because the Veteran was not diagnosed with a right shoulder disability within one year of separation of service, indeed, was not diagnosed until many years later. 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 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, the Veteran’s available one-page service treatment record, consisting of an Individual Sick Slip dated in January 1977, denotes, without providing a diagnosis or elaborating on the circumstances, that the Veteran sustained a “shoulder” injury in-service. Following service, the first treatment record for the Veteran’s right shoulder is in May 1995, where a notation shows the Veteran sought treatment for joint pain in the shoulder region. She complained of pain in the right shoulder, right knee and right leg for one week duration. She gave a history of a fall one week earlier. The examiner indicated that the Veteran reported left posterior shoulder and upper left back pain of unknown source for about one week. She also reported decreased range of motion of the left arm and shoulder. She denied trauma. She reported that she stocked shelves at work, had that job for 8 years and had been busier at work. The next evidence of record is a December 2006 right shoulder radiographic study, which shows normal findings. Four years later, in October 2010, the VA treatment indicate the Veteran complained of right shoulder, right knee, and right leg pain, and gave history of a slip and fall a week prior. Radiographic study of the right shoulder showed normal findings. A June 2011 radiographic study of the right shoulder showed degenerative changes to both AC joints and borderline narrowing of the acromiohumeral distance of the right shoulder, which according to the medical practitioner, may suggest an underlying rotator cuff abnormality. In June 2012, the Veteran complained of bilateral shoulder pain. The Veteran filed her claim for VA compensation benefits in April 2013. Then, in December 2013, the Veteran filed for and was awarded Social Security Benefits following back surgery, records note the Veteran’s left shoulder degenerative joint disease diagnosis. The Veteran submitted a Statement of Support of [her] claim in December 2013, alleging that her right shoulder pain is constant and worsening. Thereafter, in May 2014, the Veteran submitted a second statement indicating that she has had trouble with her shoulder for a long time, asserting that her injury occurred in July 1976 on the rifle range at Ft. McLane, FL. The Veteran avers that she was treated with heat packs and administered physical therapy following the claimed in-service injury, and administered a [steroidal] injection while stationed at Ft. Leonard Wood, MO, in January 1977. She further alleges that she was diagnosed with bursitis and arthritis, but in the same instrument conceded that diagnostic testing (x-rays) showed normal findings. Pursuant to her claim, the Veteran was afforded an October 2014 VA examination to assess the nature and etiology of her right shoulder condition. The Veteran proffered that in June 1976 she injured her shoulder while on the rifle range when her rifle jarred her right shoulder, averred that she sought medical care and was treated with heat packs only. She also claimed to have received a [steroidal] injection in November 1976. The VA examiner confirmed to have reviewed the Veteran’s claim folder, the report shows that the Veteran’s lay statements regarding her in-service injury and symptoms were accounted for. The examiner confirmed the Veteran’s diagnosis of degenerative or traumatic arthritis of the right shoulder. The examiner concluded that the Veteran’s shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that the current disability is a result of normal age related degenerative joint changes. The examiner’s rationale was based on the Veteran’s significant diagnostic test results from October 2000, following a slip and fall with reported paint of the right shoulder, and diagnostic studies showing the Veteran had a normal shoulder. A right shoulder radiographic study from December 2006 showed normal findings. It was not until a June 2011 radiographic study, when the Veteran’s records demonstrate the claimed physiological changes. Specifically, the June 2011 diagnostic showed degenerative changed to both AC [shoulder] joints. The Veteran was examined during a flare-up, but the examiner found that the examination contradicted the Veteran’s statements, because her subjective complaints did not correlate with the objective examination findings. The next medical evidence of record is a second VA examination in April 2016. Again, the VA examiner opined that it is less likely than not that the Veteran’s current right shoulder condition, which was diagnosed as degenerative joint disorder (DJD), is a result of the right shoulder muscle strain she sustained in service. During this examination, the Veteran claimed to have injured her shoulder in basic training in 1977 on the firing range, when she sought treatment, she was administered heat only. The Veteran’s claim did not indicate ongoing complaints of pain, rather, she averred that the second time she sought treatment in “permanent party” she was administered a Cortizone injection. The Veteran stated to not have received other treatments of her shoulder since service. On assessment, the VA examiner noted mild acromioclavicular degenerative changes, found no acute fracture or dislocation, and reported normal soft tissues. First, the examiner opined that it is less likely than not that the Veteran’s current right shoulder disability, which was diagnosed as right shoulder degenerative joint disease (DJD) per the June 2011 radiographic study, is a result of the right shoulder muscle strain that she sustained in service. Second, the examiner points to the Veteran’s description of the in-service injury and subsequent medical treatment, finding the Veteran sustained as a shoulder muscle strain because [medical providers] applied heat once and administered her a [steroidal] injection once. Third, the examiner indicates that a review of periodic radiographic studies show that the Veteran was not assessed with degenerative changes of the AC joints until June 2011. Fourth, the examiner points that the Veteran’s radiographic studies showed mild degenerative changes of the AC joints, which is consistent with examination findings such as limited abduction and tenderness of the AC joint. Fifth, the Veteran reported in 2013 that her shoulder condition had its onset in 1977, but according to the record she did not seek treatment until 1995. The examiner opined that the current condition is likely related to the manual labor the Veteran has performed over the years (working as a Walmart stocker for 11.5 years, working in a turkey farm, steel mill, etc.), and due to normal age-related changes for a person in their 50’s. The examiner also determined that based on the last entry of complaints of right shoulder pain in June 2016, the Veteran was without chronicity of right shoulder complaints. In sum, the examiner found that there are no objective findings to link the current condition to military service. The Board acknowledges that the Veteran is competent to provide testimony regarding factual matter of which she has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the diagnosis of the disability falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report her symptoms, such as pain, any opinion concerning the etiology of the disability requires medical expertise that the Veteran has not demonstrated. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that the 2016 VA opinion is the most probative evidence of record, as it addresses the claim file of record, and takes into full consideration the Veteran’s description of the injury the she sustained in service. Indeed, the Board finds persuasive the examiner’s review of the 1977 muscle strain, the October 2000 slip and fall which injured the Veteran’s right shoulder, the first post-service treatment for right shoulder pain dated May 1995, and the June 2011 radiographic study showing degenerative changes to both AC joints. The Board finds that the weight of the evidence is against a finding of continuity of symptomatology of the right shoulder condition. At the time of treatment for right shoulder complaints in May 1995, she complained of pain in the right shoulder for one week duration after a fall. She denied trauma. The Board finds this evidence to be probative and outweighs her contention of right shoulder symptoms since service. In addition, the record reflects that the Veteran was not assessed with her current right shoulder disability until June 2011. 38 C.F.R. § 3.303(b) (2018). Therefore, in balancing the Veteran’s statements and evidence of record, the Board finds the absence of evidence of continuity of symptomatology. Likewise, since the Veteran did not display a right shoulder disability to a compensable degree within one year of separation service, the Board may not apply the chronic presumption to the Veteran’s claim. 38 C.F.R. § 3.309(a) (2017). 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) (2017), the benefit of the doubt standard of proof does not apply. 38 U.S.C § 5107(b) (2012). (Continued on the next page)   Accordingly, entitlement to service connection for a right shoulder disability is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel