Citation Nr: 18158734 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 07-26 730 DATE: December 17, 2018 ORDER Service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. The appellant had Reserve service from June 2000 to April 2006 with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). 2. A right shoulder disorder did not manifest during a period of ACUDTRA or INACDUTRA. CONCLUSION OF LAW A right shoulder disorder was not incurred during a period of ACDUTRA or INACDUTRA. 38 U.S.C. §§ 101, 106, 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.6 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant had duty in the Navy Reserve June 20, 2000, February 1-15, 2001, September 20-29, 2001, October 28-November 1, 2001, December 11-13, 2002, January 5-17, 2003, May 11-23, 2003, and July 5-16, 2004, as well as other periods of INACDUTRA. In June 2012, the Board of Veterans’ Appeals (Board) denied entitlement to service connection for a right shoulder disorder. The appellant appealed to the Veterans Claims Court. In June 2013, the Court Clerk granted a joint motion for remand on the basis that the VA examinations were inadequate. In September 2013 and August 2016, the Board remanded the right shoulder claim for examinations and medical opinions. The claim is before the Board once again. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. Only “veterans” are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a “veteran” a claimant must serve on active duty, serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA, or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service on active duty alone is sufficient to meet the statutory definition of veteran; however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one “veteran” status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. These evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Board did not err in not applying presumptions of sound condition and aggravation to claim where appellant served only on ACDUTRA and had not established any service-connected disabilities from that period). However, for those who have achieved “veteran” status through a prior period of service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith, 24 Vet. App. at 40. In August 2004, the appellant had a benign cyst removed from the right cervical-suprascapular area. It is unclear which facility conducted the surgery as there are no surgical reports of the cyst removal in the record. However, in a Report of Medical History dated that same month, the appellant self-reported “no” to impaired use of arms, legs, hands, or feet. It appears that she had already had the cyst removed at the time of the Report of Medical History as she related she was waiting for the biopsy results. This suggests that she was not having any problems with her shoulders shortly after surgery. This evidence weighs against the appellant’s assertion that she had problems with her shoulder prior to having the cyst removed. It is also significant that the evidence does not show that the appellant was in duty status at the time of the surgery as there are no service treatment records reflecting cyst removal. Moreover, in October 2004, she was cleared for participation with a rowing machine, aerobics, swimming, strength training, and flexibility training, among other things. This suggests that she was not having any complaints related to the right shoulder within a few months of the cyst removal. In December 2004, the appellant was diagnosed with arthralgia of the right shoulder by her private physician after reporting a 2-day history of worsening pain. She indicated that the pain had started months ago when a cyst was removed from her shoulder but the clinician made no finding regarding a relationship between the appellant’s complaints and the cyst removal. Further, her statements are inconsistent with the October 2004 evaluation that cleared her for physical training and made no mention of right shoulder complaints. At the time of treatment in December 2004, the appellant was prescribed anti-inflammatory medication, local heat, and range of motion exercises. X-rays were normal. To the extent that she attributed the right shoulder pain to the cyst removal, it is significant that she was not in duty status when the cyst was removed. In March 2005, the appellant’s private physician found her fit for duty. This suggests that she was no longer have complaints related to the right shoulder. This finding is also supported by an April 2005 Report of Medical Examination which showed a scar on right shoulder but the upper extremities were clinically normal. In the Report of Medical History, she denied impaired use of arms, swollen or painful joint, bone deformity, or numbness or tingling of shoulder. This suggests that she was having no problems with the right shoulder at that time. Nonetheless, a May 2005 private treatment note recorded a recheck of right shoulder tendonitis and the appellant was directed to continue strengthening and medication. In a September 2005 private assessment undertaken at her request to evaluate her over-all health conditions for the Navy Reserve, the private physician noted no complaints or findings regarding the right shoulder and no diagnosis of tendonitis. In the original October 2005 claim, the appellant indicated that the right shoulder tendonitis started in May 2005. This date correlates to the date of follow-up treatment for tendonitis of the right shoulder. A February 2006 problem list includes rheumatoid arthritis, tobacco use, breast lumps, bunion, cervical cryotherapy, colposcopy, lipoma, lymphadenopathy, vaginal bleeding, pelvic inflammatory disease, bilateral tubal ligation, breast augmentation, bilateral tendinitis of the wrist, but does not include right shoulder complaints. Additional records over the intervening years reflect additional complaints and treatment for a myriad of medical issues including back pain, numbness and tingling down both legs, anxiety, gum ulcers, headaches, blurred vision, left foot swelling, joint pain, chest pain, and others. In August 2010, the Veteran underwent a right shoulder arthroscopic decompression after a work-related injury. In an April 2011 VA examination undertaken as part of the claim, the appellant related that she had no specific injury to her right shoulder and thought that her problems were normal wear and tear but attributed them to her Reserve duty. She indicated that she was seen by a private doctor and was diagnosed with right shoulder tendonitis. She also reported the 2010 injury and subsequent surgery. After a physical assessment, the clinician diagnosed a surgical scar on top of the right shoulder and right shoulder strain. The examiner found that the right shoulder disorder was less likely as not related to active periods of service in the Reserve. While the examiner was unable to pinpoint exactly when the right shoulder problem started as the appellant had a regular civilian job outside of her Reserve duty. That examination was found to be inadequate by the Veterans Claims Court and the appellant underwent another examination in March 2016. The examiner diagnosed bilateral shoulder impingement syndrome, bilateral rotator cuff tear, and rheumatoid arthritis. The examiner opined that the appellant’s right shoulder impingement syndrome and rotator cuff tear were the result of a discrete injury in March 2010 long after her periods of service. The examiner noted that the appellate did not maintain that this should be service-connected. The examiner concluded that it was less likely than not that any right shoulder disorder was incurred in, aggravated by, or otherwise the result of periods of ACDUTRA or INACDUTRA. As the examiner did not address the December 2004 diagnosis of tendonitis, the Board remanded the issue for another examination which was undertaken in July 2018. The examiner diagnosed the appellant with shoulder impingement syndrome, rotator cuff tendonitis, rotator cuff tear, arthritis, and bursitis. The appellant reported that she was injured during a drill weekend and was diagnosed with bursitis and right shoulder tendonitis. She related that the disorder has worsened since onset and significantly since a re-injury of her shoulder in 2010. The examiner found that the right shoulder bursitis was aggravated beyond its natural progress during a subsequent period of duty in February 2005. The clinician noted that bursitis can often appear and accompany rheumatoid arthritis and separately concluded that bursitis was aggravated beyond its natural progress due to the repetitive motion of lifting and carrying heavy items. However, the Board places less probative weight on this opinion as it was based on facts not supported by the record. For example, the appellant related that she was on a drill weekend when she injured her right shoulder. The service treatment records do not reflect an injury at the time. Moreover, contemporaneous with the complaints, the appellant attributed her right shoulder problems to normal wear and tear. The clinician reported that the appellant had arthroscopic surgery in 2004 but the contemporaneous records reflect that she was treated with anti-inflammatory medication, heat, and stretching exercises. Further, the clinician based her opinion on evidence showing tendinopathy while the appellant was serving on active duty but this is not the case. As the clinician’s opinion was based, at least in part, on an inaccurate factual basis, the Board places less probative value on the opinion. The appellant has undergone multiple examinations and submitted multiple medical records reflecting treatment for a myriad of medical disorders. While it is apparent that she has experienced many medical problems over the course of many years, the evidence does not show that her right shoulder disorder, first recorded in December 2004, was related to her periods of ACDUTRA or INACDUTRA. The evidence shows that her last period of ACDUTRA was in July 2004, many months before she sought treatment for right shoulder complaints, which she related to normal wear and tear. It should also be noted that she worked at the post office as a civilian during that time and reported heavy lifting as part of her job. Further, after the initial complaints related to the right shoulder in December 2014, she was found physical fit for duty, was cleared for physical training, and had no other complaints. In addition, the medical evidence, including the most recent examiner, found that the right shoulder tendonitis was not related to the cyst removal in August 2014, although the appellant had asserted that there was a connection between the two. Based on the above, the medical evidence does not support the claim. The Board has considered the appellant’s lay statements that her right shoulder disorder was caused by her service in the Reserve. She is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. It appears that the appellant had medical assistant training but at the time of the 2010 injury she was working in a laundry area. At the time of the April 2011 VA examination, she was working as a clerk/nursing assistant at a VA hospital. Nonetheless, even with medical assistant training, it does not appear and she does not assert that she has any specialized training in orthopedics. Such competent evidence has been provided by the medical personnel who have examined the appellant during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to her statements. As such, the service and medical records are more probative than the appellant’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Kokolas, Associate Counsel