Citation Nr: 18153569 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-19 756 DATE: November 28, 2018 ORDER 1. Entitlement to service connection for a right shoulder disability, to include a torn right shoulder labrum, right shoulder strain/sprain, impingement syndrome, and degenerative changes, is granted. 2. Entitlement to service connection for a right index finger laceration scars is denied. FINDINGS OF FACT 1. A right shoulder disability had its onset in service. 2. The preponderance of the evidence is against a finding that a right index finger laceration scars had their onset in service or are otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability, to include a torn right shoulder labrum, right shoulder strain/sprain, impingement syndrome, and degenerative changes, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right index finger laceration scars have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1979 to July 1983, November 2004 to November 2005 and October 2009 to December 2011. The Veteran also had periods of active duty for training (ACDUTRA). The Veteran was deployed to Afghanistan from December 2010 through October 2011. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease, such as arthritis or degenerative changes, is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). 1. Entitlement to service connection for a right shoulder disability, to include a torn right shoulder labrum, right shoulder strain/sprain, impingement syndrome, and degenerative changes. The Veteran’s claim for service connection for a right shoulder disability was received by the VA Regional Office (RO) on November 17, 2011. After careful review of the evidence of record, the Board finds that the evidence warrants service connection for the Veteran’s right shoulder disability. Degenerative joint disease is a chronic disease for which presumptive service connection under 38 C.F.R.§ 3.309(a) is available. However, in this case the evidence of record shows that the Veteran’s degenerative changes in her right shoulder were not documented until July 2016. As the degenerative changes were not manifested to a compensable degree within one year of service discharge presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. The evidence of record shows that the Veteran has current right shoulder disabilities, which include a torn right shoulder labrum, right shoulder strain/sprain, impingement syndrome, and degenerative changes. Therefore, the Veteran meets the first required element for a direct service connection claim. In July 2010, while on active duty and prior to deployment, the Veteran fell on an outstretched hand in three feet of water in a pool. The Veteran first sought treatment in August 2010 and reported that she was unable to perform full range of motion for her right shoulder the day after her fall. Accordingly, the Veteran meets the second requirement for a direct service connection claim, an in-service injury. As to evidence of a nexus between the current disability and service, the Board finds that the evidence supports a nexus. VA treatment notes show that the Veteran continued to seek treatment for her right shoulder pain during service and after service. Specifically, in September 2011, during deployment, the Veteran was prescribed Mobic and Flexeril for her right shoulder pain. In July 2013, a VA examiner reported diagnoses of right shoulder strain/sprain, right shoulder labrum tear and right shoulder impingement syndrome. The examiner reported that the Veteran’s initial right shoulder range of motion showed flexion ending at 160 degrees and abduction ending at 120 degrees. After three repetitions, the Veteran showed right shoulder range of motion with flexion ending at 110 degrees and abduction ending at 90 degrees. The examiner reported that the Veteran had functional loss and/or impairment of the right shoulder and arm with pain and weakened movement. The examiner reported that the Veteran’s right shoulder functional loss moderately impacts the Veteran’s ability to work related to overhead physical labor due to restricted range of motion. In July 2016, an MRI of the Veteran’s right shoulder provided at a VA facility, showed tendinosis of the supraspinatus and infraspinatus with associated fluid in the sub deltoid/sub acromial bursa which may correlate to the clinical bursitis and mild degenerative changes of the glenohumeral joint and acromioclavicular joint. In July 2016, a private medical provider, Dr. S.B., reviewed a July 2016 MRI showing a small partial-thickness rotator cuff tear of the supraspinatus tendon versus some tendonitis of that tendon with chronic irritation. The private medical provider opined that the Veteran’s current condition is just as likely as not to be linked to and caused by her injury sustained in July 2010 while on active duty. The Board finds that after the July 2010 fall, the Veteran has continued to treat for her right shoulder pain. The STRs, the VA examiner’s findings, Dr. S.B.’s opinion, and the VA treatment records related to the Veteran’s right shoulder are probative and persuasive evidence supporting the Veteran’s claim. In conclusion, the Board finds that the evidence of record warrants service connection for a right shoulder disability, to include a torn right shoulder labrum, right shoulder strain/sprain, impingement syndrome, and degenerative changes, effective November 17, 2011 when the Veteran filed the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for right index finger laceration scars. In a statement in support of the claim received by the RO in September 2016, the Veteran asserted that she “sustained a very bad cut on (her) right forefinger” while deployed in Afghanistan. The Veteran also asserted that her right index finger was photographed during a post deployment health reassessment. The Board concludes that while the Veteran has two current right index finger laceration scars, it does not find that the Veteran’s right index finger laceration scars manifested during service and are not otherwise related to service. The evidence shows that the Veteran meets the first required element for a direct service connection claim because she has two current right index finger laceration scars. However, the preponderance of the evidence is against an in-service injury pertaining to the Veteran’s right index finger. A February 2012 VA examiner reported that the Veteran has two right index finger laceration scars. The examiner also noted that the Veteran reported that her right forefinger is numb to touch and hurts when clothes rub on the finger. In the September 2016 statement in support of the claim, noted above, the Veteran asserted that she lacerated her right index finger while deployed and “attempted to obtain medical records from that particular clinic” but it was permanently closed. However, the Board finds that the Veteran’s September 2016 vague statement regarding her right index finger laceration lacks credibility. The Board notes that if there was an in-service right index finger laceration such an incident would be documented in the STRs. There are hundreds of pages of STRs, which show multiple medical complaints; however, they are negative for evidence that the Veteran “sustained a very bad cut on (her) right forefinger” during active duty deployment or at any other time during service. Notably, the STRs document that the Veteran received treatment for her right shoulder pain and left forearm. The STRs also show the Veteran giving very detailed information as to how she fell and injured her right shoulder. Therefore, the absence of any documentation as to how and when the Veteran’s right index finger laceration scars occurred, and how the laceration was treated calls into question the Veteran’s statements as to injuring her index finger. Further, the absence of evidence supporting the Veteran’s claim is probative that the right index finger laceration scars are not related to service. Therefore, the Board finds that the second required element for a direct service connection claim, which is an in-service injury, has not been met and the claim is denied. To the extent that there is a photograph of one of the Veteran’s fingers in the evidence of record, the Board notes that the photograph is not marked as to which finger is actually in the photograph and the photograph does not establish an in-service injury to the Veteran’s right index finger. For the reasons described above, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for right index finger laceration scars. 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. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel