Citation Nr: 1814546	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  14-24 292A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a right shoulder condition.


REPRESENTATION

Veteran represented by: The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and Veteran's Mother


ATTORNEY FOR THE BOARD

A. Snoparsky, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from June 1967 to July 1967.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran had a hearing before the undersigned Veterans Law Judge in December 2016.  A transcript has been associated with the file.


FINDING OF FACT

The Veteran's right shoulder condition was not aggravated beyond its natural progression by the Veteran's time in service.


CONCLUSION OF LAW

The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Under 38 C.F.R. § 3.304 (b), the Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  Only such conditions as are recorded in examination reports are to be considered as noted.  When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  VA may only rebut this presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  A mere history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.  See 38 C.F.R. § 3.304 (b)(1); Crowe v. Brown, 7 Vet. App. 238 (1995). 

A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran was diagnosed with a right shoulder condition prior to his time in service and this pre-existing injury was clearly and unmistakably noted in his service treatment records (STRs).  The question is whether the Veteran's pre-existing right shoulder condition was aggravated beyond its natural progression by the Veteran's time in service.  

In June 1967, the Veteran's STR's show he had initially dislocated his shoulder prior to service and had dislocated it again in the military while doing the low crawl.  

The Veteran has had several examinations for his right shoulder condition.  October 2010 and January 2017 examiners opined the Veteran's right shoulder condition was more likely than not due to his time in service.  However, neither of those examiners took into account the Veteran's pre-existing right shoulder condition and did not opine as to whether the Veteran's pre-existing right shoulder condition was aggravated beyond its natural progression due to the Veteran's time in service.  A May 2014 examiner opined the Veteran's right shoulder condition clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by the right shoulder injury the Veteran sustained while on active duty.  The May 2014 examiner explained the STRs provided objective evidence for a history of recurrent right shoulder dislocations prior to service.  The examiner also opined that the October 2010 examination was flawed because it did not take into account the Veteran's history of pre-service right shoulder dislocations.  

The Veteran had a hearing for his right shoulder condition in December 2016.  The Veteran's representative contended that the October 2010 examiner did in fact take into account the Veteran's complete history, including his pre-service injury, when opining that the Veteran's right shoulder condition was due to his time in service because the examiner indicated he had reviewed the Veteran's file.  

The more probative evidence is against finding that the Veteran's pre-existing right shoulder condition was aggravated by his time in service.  The October 2010 and January 2017 examiners opined that the Veteran's right shoulder condition was most likely due to his time in service.  However, these opinions did not indicate the examiners had taken into account the Veteran's pre-existing right shoulder condition, a key issue in this case.  The Veteran's representative contends that because the October 2010 examiner said he reviewed the Veteran's file and the pre-existing medical treatment records were included in the file, the examiner did actually take into account the Veteran's pre-existing right shoulder condition when forming his opinion.  However, the October 2010 did not actually address the question of aggravation.  

Additionally, the January 2017 examiner who checked the box saying the Veteran's right shoulder condition was due to his in service shoulder dislocation did not mention the Veteran's pre-existing right shoulder condition and did not include a discussion about the Veteran's pre-existing condition.  The May 2014 examiner opined the Veteran's pre-existing right shoulder condition had not been aggravated beyond its natural progression due to his shoulder injury in service.  Because the May 2014 addresses the question of aggravation while the other examinations do not, the Board finds this opinion to be most persuasive.  

The Board acknowledges the Veteran's statements that he believes his right shoulder condition was aggravated by his time in service.  The Board also acknowledges that the Veteran suffers from symptoms and pain from his shoulder that have gotten worse over the years.  While the Veteran is competent to report on his symptoms per Layno v. Brown, 6 Vet. App. 465 (1994), he is a layperson who is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition.  Bostain v. West, 11 Vet. App. 124 (1998).  Because the more probative evidence is against the Veteran's pre-existing right shoulder condition being aggravated beyond its natural progression due to his time in service, service connection is not warranted and the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b) (West 2014); 38 C.F.R. §3.102 (2016), Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Duty to Assist and to Notify

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

ORDER

Service connection for a right shoulder condition is denied.


John J. Crowley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs