Citation Nr: 1806488 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-02 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected gout. 2. Entitlement to service connection for a left elbow disorder as secondary to a left shoulder disorder or service-connected gout. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to December 1979 and from April 1989 to February 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his January 2013 VA Form 9 substantive appeal. The hearing was scheduled for October 2017, but he did not attend. Thus, the request is considered withdrawn. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The Veteran's left shoulder disorder is not related to service and is not caused or aggravated by his service-connected gout. 2. The Veteran's left elbow disorder is not caused or aggravated by his service-connected gout. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria to establish service connection for a left elbow disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "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"-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 a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Facts and Analysis In July 2011, the Veteran submitted a statement in which he contended that he has a left shoulder disorder due to his military service and a left elbow disorder secondary to his left shoulder disorder. A service treatment record (STR) associated with the file in August 2012 reflects that the Veteran was diagnosed with recurrent anterior dislocation of the left shoulder in March 1978. At this time, the Veteran underwent a Bristow repair of his shoulder to prevent additional dislocation of the joint. STRs associated with the file in November 1992 reflect that during the Veteran's January 1992 separation examination his upper extremities were marked as "normal" and he did not note the presence of any problems with his left shoulder at such time. The Board notes that, unfortunately, some of the Veteran's STRs from his first period of active duty service have not been located. The Veteran was informed of their unavailability in a February 2012 correspondence. This correspondence further informed the Veteran of other evidence he could submit in lieu of the missing records. Thereafter, some STRs from this period were associated with the record in August 2012. However, there appear to still be some STRs from this period of active duty service missing. When some or all of a veteran's STRs are unavailable, it has been 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 Veteran was afforded an examination in regard to the claims on appeal in October 2012. Following diagnostic testing, the examiner found that the Veteran has impingement syndrome of the left shoulder, osteoarthrosis of both shoulders, and bilateral elbow arthritis. The examiner reviewed a study of complications experienced by patients who underwent the Bristow surgical procedure and found that the Veteran's left shoulder disorders were not common complications of such procedure. The examiner also noted that the Veteran's test results show left shoulder joint problems that were not present in 1978 and that his current left shoulder disorder did not become symptomatic until four to seven years prior to the examination. He further noted that the Veteran worked as an automobile mechanic and in security operations after his discharge from service. The examiner concluded that the Veteran's current left shoulder conditions are not caused by or a result of his active duty service. The examiner instead found that the Veteran's left shoulder conditions were likely due to biological aging and post-service employment. He also concluded that the Veteran's bilateral elbow arthritis is related to biological aging. Thereafter, the Veteran stated on his January 2013 VA Form 9 substantive appeal form that he believes his left shoulder and left elbow disorders are caused or aggravated by his service-connected gout disability. In this regard, the RO scheduled the Veteran for an examination to determine if such disorders are secondary to his service-connected gout. However, the Veteran did not attend this examination or offer good cause for not attending the examination. The Board must, therefore, adjudicate the appeal based on the current evidence of record. See 38 C.F.R. § 3.655. The Board finds that the October 2012 examiner's opinion is clear and unequivocal and is based on the relevant information, including the Veteran's available STRs, post-service treatment records, diagnostic testing, and scientific findings. Moreover, the examiner's explanation is logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, his conclusion that the Veteran's left shoulder was not caused by his in-service left shoulder dislocations and subsequent surgery is highly persuasive and probative evidence. In addition, the examiner explained why he found that the Veteran's left shoulder is instead likely due to biological aging and post-service employment. Significantly, although the evidence clearly shows left shoulder problems in service, they did not ultimately result in a current problem, which is necessary to establish service connection. As the Veteran is not service connected for a left shoulder disorder, his left elbow disorder cannot be service connected secondary to such disorder under 38 C.F.R. § 3.310 as secondary service connection presupposes the existence of an underlying service-connected disability. 38 C.F.R. § 3.310. Furthermore, because the Veteran did not attend an examination scheduled to investigate whether his left shoulder and left elbow disorders are secondary to his service-connected gout, there is no competent evidence of record to establish such a nexus. Moreover, the Board does not find that an additional opinion is warranted, even without an in person examination, as there is not even an indication of this secondary relationship. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). The Veteran contends that his left shoulder is related to his in-service left shoulder injuries and treatment. He also contends that his left shoulder and left elbow disabilities are caused or aggravated by his service-connected gout. However, these are complex medical questions outside the competence of a non-medical expert to determine whether such cause-and-effect relationships exist in this particular case, or whether there has been aggravation. In this case, the nexus question involves complex medical matters requiring expert consideration and cannot be considered within the competence of a non-expert lay witness. Thus, the Veteran, as a lay person, has not established the competence needed to rebut expert medical opinion or establish such a nexus in the absence of such an opinion from a medical expert. See Fountain v. Shinseki, 27 Vet. App. 258, 274-75; Monzingo, 26 Vet. App. at 106. As such, his opinions are not adequate to rebut the VA examiner's conclusions, nor are they otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his left shoulder disorder and service, or even to service-connected gout. See Fountain, 27 Vet. App. at 274-75. Accordingly, the preponderance of the evidence is against the claims. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted for either claim on appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left shoulder disorder is denied. Service connection for a left elbow disorder is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs