Citation Nr: 18149772 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 10-24 217 DATE: November 13, 2018 ORDER Service connection for a right shoulder disability including as secondary to back disability is denied. FINDING OF FACT A right shoulder disability did not develop in service is not causally related to service. Right shoulder arthritis was not present within the first post-service year. A right shoulder disability was not caused or aggravated by service-connected back disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability including as secondary to back disability have not been met. 38 U.S.C. § 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to January 1970 and from October 1970 to April 1974. The Department of Veterans Affairs (VA) is grateful for his service. The Board in June 2015 remanded the appealed claim for additional development. That requested development has been substantially completed, including affording the Veteran the opportunity to submit additional relevant evidence, and obtaining a VA examination with an addendum as well as a medical expert opinion addressing the Veteran’s contentions of injury to the shoulder in service and of developing a shoulder disability as secondary to his service-connected back disability. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 1. Service connection for a right shoulder disability including as secondary to back disability The Veteran contends, in effect, that service connection is warranted for a right shoulder disability based on injury to the shoulder in service, or as secondary to service-connected back disability. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); see also 38 U.S.C. § 1101(3) (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service and there is evidence that the claimant's symptoms have continued after discharge. 38 C.F.R. § 3.303 (b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112 (a)(1), 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2017). Arthritis is included among chronic disease for which this presumption is applicable. 38 C.F.R. § 3.309(a) (2017). If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic,” or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. 38 C.F.R. § 3.303 (b). The application of these presumptions satisfies the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Additionally, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (a) (2017). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.303 (a). At his March 2015 hearing, the Veteran testified to injuring his right shoulder in the same accident in which he injured his back, and that his shoulder has grown progressively worse since that time. (Hearing transcript, page 8.) However, service treatment records fail to reflect any injury to the right shoulder when the Veteran injured his back. Service treatment records reflect that the Veteran suffered a compression fracture to the low back at L1 when he accidentally fell from a window. Records from this accident and subsequent treatment records do not reflect any injury or disability to the right shoulder, or any complaints of right shoulder pain or dysfunction. Service treatment records also reflect a bruised left shoulder in December 1971. They provide no record of injury, complaint, finding, or diagnosis referencing the right shoulder. Records following service do not reflect any complaints or treatments for right shoulder disability for decades following service. The Veteran also submitted multiple claims for VA benefits over decades following service, none of which mentioned or sought benefits for any disability of the right shoulder. The Veteran was afforded a VA examination in September 2015 and the claims file was reviewed. Current right shoulder diagnoses were noted to include acromioclavicular joint arthritis and degenerative arthritis. Degenerative arthritis was also noted to be present in the left shoulder, and the left shoulder also had a history of contusion. The Veteran demonstrated full, normal range of motion in both shoulders including following three repetitions, without functional loss following three repetitions, though the examiner was unable to say without speculation whether impairment would be demonstrated following additional use. Full strength in the right arm was also demonstrated, and the examiner found no functional impairment for occupational tasks. The September 2015 examiner opined that it was not at least as likely as not that the Veteran’s right shoulder disability was incurred in or caused by an in-service injury, event, or illness. The examiner explained that the record was reviewed and there was “no evidence in the [service treatment records] of traumatic injury to the shoulders of such severity that I can correlate directly to his present pain process.” The examiner added, “Present exam points more toward arthritic pain bilaterally and should not be confused with radiculopathy from any back problems. There is notation in the record of complaints to the shoulder with physical therapy after repeated range of motion exercises. This may be due to his lack of exercise in the past and his muscles having to adapt to activity.” The examiner additionally noted that while there was a record of injury in service, this was of a “bruised left shoulder” in December 1971, not the right shoulder. The examiner noted the absence of any indication in service treatment records of injury to the right shoulder. In a May 2016 VA medical examination addendum report, the examiner reviewed a recently submitted x-rays report indicating that the Veteran had degenerative changes to the right shoulder as well as a history of some type of prior injury or surgery. The examiner reviewed other records reflecting that the Veteran had undergone acromioplasty to the shoulder in June 2007. While the record of the acromioplasty could not be located, other records supported this past surgery at that time. Specifically, medical records from 2007 reflected that the Veteran was treated by acromioplasty in the right shoulder in 2007 for symptomatic right shoulder impingement, and had undergone follow-up care after that surgery. The examiner in the May 2016 addendum found that no change was warranted in his September 2015 opinion based on these submitted medical records. The examiner added that the Veteran was separated from service in the 1980s and subsequently worked as a truck driver as well as performing heavy labor in a factory, and noted that the Veteran may easily have suffered from impingement injury to the shoulder over the course of such post-service work. VA obtained a medical expert opinion in July 2017 addressing the likelihood that the Veteran’s current right shoulder disability developed in service. The medical expert reviewed the record and noted that the Veteran was diagnosed with a chronic impingement syndrome of the right shoulder. The physician explained that such an impingement was due to repetitive stresses and activities and not due to an acute injury. On these bases, the examiner concluded that the shoulder disability was not the result of injury to the shoulder in service as the Veteran had claimed. The examiner accordingly opined that the Veteran’s right shoulder impingement was not at least as likely as not incurred in or related to service. The physician also addressed whether the right shoulder disability may have been due to the Veteran’s service-connected L1 compression fracture which he suffered in service, including as a result of any ambulatory aids used due to that back disability, such as canes, crutches, or a walker. However, the physician noted that there was no mention in the Veteran’s medical record of the Veteran suffering from excessive stresses on his shoulder due to any conditions that may have resulted from the L1 compression fracture, such as “pain, stiffness, or paralysis” which may have resulted in the need to use such aids. The physician accordingly concluded that it was not at least as likely as not that the Veteran’s right shoulder disability was caused or aggravated by his service-connected back disability. The Board finds the findings and conclusions of the July 2017 medical expert to be entirely consistent with the Veteran’s past history and medical record as documented within the claims file, and to be based on sound reasoning as supported by the physician’s medical knowledge. The Board accordingly finds the physician’s findings and opinions to be competent, credible, and deserving of substantial weight in the Board’s adjudication. Similarly, the examination reports from September 2015 and May 2016 provide opinions against any link to service, based on review of relevant evidence, which evidence includes no medical evidence supporting injury to the right shoulder in service or a link between a service event, injury, or disease and current disability, and includes no evidence of a link between service-connected back injury and right shoulder disability. These opinions are also well-supported by the weight of the evidence of record, sound reasoning, and medical knowledge, and are thus entitled to substantial weight. In contrast, the Veteran’s assertions of having injured his right shoulder when he injured his back in service and of having a progressively worsening shoulder condition since that time are not supported by any service record of injury to the right shoulder or any record of a complaint or disability of the right shoulder in service, any evidence of a right shoulder disability or of difficulty with the right shoulder for decades following service, or even evidence of a current right shoulder disability medically associated with a long-ago injury to the shoulder. As the July 2017 medical expert concluded, the Veteran’s right shoulder impingement was medically attributable to repetitive stresses and activities, not acute injury. Since the Veteran’s assertions are inconsistent with both service and post-service records and current medical findings, they are found to be of limited credibility and entitled to little weight in the Board’s adjudication. The preponderance of competent, credible evidence of record is against the Veteran having injured his right shoulder in service, is against disability of the right shoulder in service, is against arthritis of the right shoulder being present within the first post-service year, and is against any service-connected disability, including in particular service-connected back disability, having caused or aggravated a right shoulder disability. Accordingly, the preponderance of the evidence is against the claim based on all theories presented, and service connection is not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter