Citation Nr: 18145797 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-06 757A DATE: October 30, 2018 ORDER The decision of the Board of Veterans’ Appeals (Board) of May 21, 2018 is vacated. Entitlement to service connection for a right shoulder disability, to include trapezius muscle strain, is denied. FINDINGS OF FACT 1. The Board was in constructive possession of additional medical evidence relevant to the claim which was not considered in its May 21, 2018 decision, and as such, the Veteran was denied due process of law. 2. The preponderance of the evidence is against finding that the Veteran has a right shoulder disability due to an in-service event, injury, or disease.   CONCLUSIONS OF LAW 1. The criteria for a motion of vacatur of the Board decision of May 21, 2018 have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). 2. The criteria for entitlement to service connection for a right shoulder disability, to include trapezius muscle strain, are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.04, 3.307, 3.309 (2017). MOTION TO VACATE On May 21, 2018, the Board denied entitlement to service connection for a right shoulder disability. The Veteran, through her representative, has moved the Board to vacate that decision on the grounds that the Veteran was denied due process based on the fact that VA did not consider a submitted medical opinion dated May 16, 2018. The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). Depending on the facts of the case, denial of due process may include a failure to consider relevant evidence that was constructively in the Board’s possession. Pursuant to 38 C.F.R. § 20.1100 (2017), all decisions of the Board will be stamped with the date of mailing on the face of the decision. Here, the Board’s decision denying entitlement to service connection to a right shoulder disability was mailed on May 21, 2018. The Veteran, through her representative, had already submitted an additional medical opinion relevant to her right shoulder service connection claim that was received by VA on May 16, 2018 but was not reflected in VA databases until June 13, 2018. The United States Court of Appeals for Veterans Claims (Court) indicated in Bell v. Derwinski, 2 Vet. App. 611 (1992) that certain VA evidence is constructively before adjudicators. See Bell, 2 Vet. App. at 613 (where documents are in VA control and could reasonably be expected to be a part of the record, such documents are, in the contemplation of law, before VA and should be included in the record). Here, the Veteran, through her representative, submitted an additional medical opinion that was received by VA on May 16, 2018, and regardless of when that document was reflected in internal VA databases, the Board finds that additional medical opinion was constructively in VA’s possession prior to the signature and mailing date of the pertinent decision of May 21, 2018. As such, the Board finds that the Veteran was denied proper due process of law because the Board failed to consider evidence that was constructively in its possession as of the signature and mailing date of its May 21, 2018 decision that denied entitlement to service connection for the Veteran’s right shoulder disability. Accordingly, the motion to vacate is granted and the May 21, 2018 Board decision addressing the issue of service connection for a right shoulder disability is therefore vacated. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to August 1999 and from July 2004 to November 2005. The original matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified in a July 2017 travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board remanded the issue on appeal for additional development in September 2017. The directives having been substantially complied with, and with the earlier Board decision of May 21, 2018 regarding this claim having been vacated as noted above, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. 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 Veteran 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 the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Right Shoulder Disability Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a pre-existing disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include degenerative arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For degenerative arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran seeks entitlement to service connection for a right shoulder disability. She asserted during her hearing with the undersigned VLJ that she injured her right shoulder while serving as a drill sergeant doing unarmed combat training 2004 to 2005, and doing other duties that caused excessive stress on her right shoulder. The Veteran’s service treatment records, to include entrance and exit examinations, are silent for any complaint or treatment specifically of a right shoulder or right shoulder muscle condition. The Veteran’s July 1999 separation examination from her first period of active duty is silent for any right shoulder condition or complaint. The entrance examination for her second period of active duty accomplished in July 2004 was silent for any notes about painful wrists, elbows, or shoulders. The separation report of medical history from November 2005 notes “yes” to the box for painful shoulder, wrist, or elbow, and that examiner noted chronic right wrist and right elbow pain; shoulder issues were not mentioned. Service treatment records do show complaints of and treatment for the right elbow and right leg in April 2005, focusing on the right knee while in service. The Board notes the Veteran is already service-connected for a right knee disability, a right elbow disability, and a right wrist disability, all effective from the date after the Veteran left active service. The Veteran received a comprehensive VA compensation and pension examination in May 2006. The orthopedic phase of the examination included examination of the shoulders. Such examination found no tenderness of the shoulders, full range of motion of the shoulders, and arm strength with shoulder flexion normal 5/5 bilaterally. Although complaints were made by the Veteran and noted by the examiner regarding the back, knee, right elbow, and right wrist, no mention was made by either the Veteran or the examiner of a shoulder complaint or pathology. The Veteran sought treatment from VA in May 2007 for her right shoulder, complaining of pain and noting she had received two steroid shots to the area. X rays were taken and the examiner noted a negative right shoulder examination, because the bony structures showed no significant degenerative change, fracture, focal lesion, or dislocation. The Veteran sought VA treatment again in August 2008 for right shoulder pain. X-rays were taken and revealed minimal degenerative changes of the right shoulder with no fracture. There was no evidence of fracture or subluxation. Osseous mineralization was considered normal for the Veteran’s age. The acromiohumeral space was well maintained. There was no soft tissue mass or calcification. A limited evaluation for the right hemithorax was unremarkable. The Veteran received treatment from a private medical provider, Central Florida Internal Occupational and Preventive Medicine, in March and April 2009, for complaints of right shoulder pain. Imaging indicated a possible labral tear in the right shoulder. Another VA treatment note from July and August 2009 indicated via examination and imaging of the right shoulder that there is mild degenerative arthrosis at the right acromioclavicular joint associated with minimal inferior lateral tilt of the acromial process of the scapula with secondary minimal narrowing of the supraspinatus outlet. In addition, trace fluid was present within the subacromial subdeltoid bursa possibly related to reactive bursitis due to the degenerative arthrosis at the acromioclavicular joint. There were no MRI secondary signs of a full thickness rotator cuff tear, and there was no appreciable atrophy of the muscles of the right shoulder. The VA orthopedist noted in the record that the acromioclavicular joint was part of the clavicle, not the shoulder, and that her complaints of pain were related to the muscles in the cervical region and not related to her shoulder. The Veteran received VA treatment in June 2014 for complaints of pain in her right shoulder. The Veteran indicated she had a serious fall in a parking garage in April 2014. The examiner noted mild degenerative changes at the acromioclavicular joint which mildly impresses upon the supraspinatus outlet. No discrete rotator cuff tear was identified. VA treatment notes from July and October 2015 indicate a diagnosis of mild infraspinatus tendonitis and mild degenerative changes of the acromioclavicular joint, based on MRI and arthrogram findings. No labral tear was noted. The Veteran had articulated during her July 2017 Board hearing about this 2015 treatment with Dr. C.A., a VA orthopedic surgeon, that she had asked this physician about whether her shoulder injury could be attributed to military service and combat training, but the written records with Dr. C.A. in the claims file are silent for any possibility of nexus to active service of the Veteran’s right shoulder condition. The Veteran received a VA shoulder and arm conditions examination in October 2017. The Veteran reported to the examiner she had hurt her shoulder while in service during combat training and that she dislocated her right elbow at one point. She also reported her shoulder pain continued on and off after active service, and that she was not having any current issues with her right shoulder. This examiner diagnosed mild tendinosis of the infraspinatus tendon and mild degenerative changes of the acromioclavicular joint, as noted from the October 2015 MRI as well. The examiner also noted a glenoid labral tear from a September 2015 treatment note. Additionally, the examiner performed a Hawkins’ Impingement Test, which was positive, possibly signifying a rotator cuff tear or tendinopathy. This October 2017 VA examiner provided a negative nexus opinion for possible service connection, opining that the Veteran’s right shoulder condition was less likely than not incurred in or caused by military service. The examiner specifically noted the entire claims file was reviewed, to include the Veteran’s statements and the three buddy statements submitted. The examiner’s rationale was that the Veteran was seen and treated after her combat training where she sustained a right elbow and right knee injury, but at that time there was no complaint or indication of a right shoulder injury. The Veteran’s first complaint post-separation was 18 months after active service where she complained of right shoulder pain, but radiographs were normal. With regard to the acromioclavicular joint arthrosis and impingement, the examiner noted she could not attribute this to military service, because there was no evidence of an injury to the acromioclavicular joint, which is part of the clavicle, while in service, or the right shoulder itself. The earliest x-ray of any degenerative changes in the right shoulder area occurred 4.5 years after separation from active service in 2009. This examiner also pointed out that there is no current indication of a labral tear based on a negative arthrogram and subsequent MRI in October 2015. The Veteran received an addendum private medical opinion regarding service connection in May 2018 from a physician who stated: “it is therefore my medical opinion the right shoulder degenerative changes and the post-service pathology is more likely than not related to the noncombat injury in 2005 as documented in her service treatment records.” This physician’s opinion did not include examination of the Veteran but relied on a review of medical records in the claims file. This physician’s rationale was that his review of the claims file indicated the Veteran complained of right shoulder injury during her second period of active service, and such complaints were documented on her November 2005 separation examination report of medical history, indicating an in-service injury. He then pointed out that the Veteran consistently sought treatment by medical providers for her right shoulder pain, with x-rays in August 2008 and an MRI in both June 2014 and October 2015 indicating mild degenerative hypertrophy of the acromioclavicular joint which narrows the supraspinatus outlet and the infraspinatus tendon was slightly thickened. The physician providing this positive nexus opinion considered the evidence of right shoulder injury to be uncontroversial and the pattern of complaint and treatment since active service were indicative of a consistent right shoulder disability that originated in her second period of active service. The Board considers the VA examinations and October 2017 opinion regarding service connection to be extremely probative as they are sound and thorough, and had sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting medical literature and clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Board notes especially that the Veteran’s examination and treatment in October 2015 by a VA orthopedic surgeon, while not a formal compensation and pension examination, diagnosed mild infraspinatus tendonitis and mild degenerative changes of the acromioclavicular joint. No labral tear was noted. But when queried by the Veteran about the possibility of nexus to service, that VA orthopedic surgeon declined to make any written record of such possibility. The October 2017 VA opinion thoroughly discussed direct service connection, to include a comprehensive review of the Veteran’s complete in-service and post-service medical history, plus the Veteran’s and her buddies’ lay statements. In contrast, the Board considers the additional addendum opinion of May 2018 to be of low probative value. This private examiner reviewed the claims file, but without examining the Veteran in person, derived a positive nexus opinion for service connection with a conclusory statement using language of possibility rather than conclusions reached through factual analysis. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). First, this examiner was mistaken when he wrote that the Veteran complained of right shoulder injury in her November 2005 separation examination; she did not. Although she indicated in the affirmative regarding the presence of “painful shoulder, wrist, or elbow” the examiner found only chronic right wrist and right elbow pain. It is a reasonable interpretation of this evidence that reference to the shoulder was only contained within an upper extremity grouping, and was discounted by not only the findings of the November 2005 examiner, as well as the preceding service treatment records that found only injuries to the wrist and elbow and not the shoulder. The Veteran did complain, as noted above, of right wrist and right elbow issues, both of which the Veteran is now service connected for, but not of a shoulder injury or related symptoms. This private examiner continued, noting that based on the severity of the injury and residuals to other parts of the body, knees, wrist, and elbow, that it was likely that the shoulder area would also have sustained impact, without specifying which impact he was talking about. In contrast, the Board notes the Veteran’s original assertions that her right shoulder claim is borne out of general overuse and chronic pain rather than a specific incident. Furthermore, this opinion specified the Veteran’s medical records contained no documented traumatic injury to the right shoulder, when in fact the claims file documents the Veteran’s April 2014 fall in a parking garage, for which she was treated by VA, as recorded in a June 2014 VA treatment note. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case. See Stefl, supra. A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes the Veteran is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). The Board notes that Veteran along with her three buddy statements have stated her right shoulder disability resulted from her active service, but the Veteran and her witnesses are not trained medical professionals. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a right shoulder disability and its etiology falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board takes special note of the fact that in the Veteran’s second separation examination of November 2005, the month she departs active service, that her separation report of medical history from that examination notes “yes” to the box for painful shoulder, wrist, or elbow, but that examiner noted chronic right wrist and right elbow pain, and no shoulder issues were mentioned by either the examiner or the Veteran. Critically, the following year, the Veteran received a comprehensive VA compensation and pension examination in May 2006. Although this included a comprehensive orthopedic examination of all joints including the shoulders, no mention was made by either the Veteran or the examiner of a shoulder complaint or shoulder pathology, and no shoulder complaint is made until May 2007 with VA, as noted previously. Upon review of the evidence of record, the Board finds that the weight of the competent and probative evidence does not demonstrate that entitlement to service connection is warranted for the Veteran’s claimed right shoulder disability. The previously mentioned VA examinations find multiple diagnoses of a right shoulder disability beginning a minimum of 18 months after active service, and thus the requirement for a current disability is met. However, there is no evidence in the record for a specific right shoulder injury or condition during service for either period of active duty. The Board notes the lay statements and complaints of the Veteran, but also notes her symptoms are accounted for in the diagnoses of her right elbow and right wrist conditions during active service. The Board finds that the VA medical examinations, treatment notes, and opinions are the most probative evidence and demonstrate that the current right shoulder disability was not incurred in service. There are no positive nexus opinions from VA in the Veteran’s claims file, and only the conclusory addendum opinion of no positive probative value noted above from any private medical authority. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); Bostain v. West, 11 Vet. App. 124 (1993). Furthermore, the Board notes that no degenerative arthritis of the right shoulder was diagnosed within one year of leaving active service, and that no continuity of symptomatology exists or might reasonably be questioned. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). The Board is cognizant that degenerative changes were visible via x-ray of the right shoulder, but that does not occur until 4.5 years after separation from her last period of active service. Id. Because the Veteran has no in-service or related disease or injury that occurred in service or within one year after leaving active service that is not already accounted for in her other service-connected disabilities, the second and third prongs of the test for entitlement to direct service connection is not met. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. (Continued on the next page)   For the foregoing reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a right shoulder disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel