Citation Nr: 1815171 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 08-15 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Brendan B. Garcia, Attorney ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to July 1981 and from November 1982 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claim on appeal was most recently before the Board in May 2017, when it was remanded for additional development. The case has now been returned to the Board for further appellate review. In December 2017, the Board remanded the issues of entitlement to a compensable initial disability rating for a heart disability, entitlement to a compensable rating for residuals of multiple rib fractures, entitlement to a rating higher than 10 percent for left shoulder impingement prior to June 15, 2015, entitlement to an initial compensable rating for status-post excision of numerous moles and cysts, and entitlement to service connection for bilateral hearing loss. However, the Board's review of the record reveals that the Agency of Original Jurisdiction (AOJ) has not recertified these issues for consideration by the Board, and it appears the AOJ is still taking action on these issues. As such, the Board will not accept jurisdiction over these issues at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. FINDING OF FACT The Veteran's right shoulder disability was not present in service or until many years thereafter and is not otherwise etiologically related to service; nor has the right shoulder disability been proximately caused or aggravated by the Veteran's service-connected left shoulder disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or that has been aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. §3.310). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2015); 38 C.F.R. §§ 3.307, 3.309 (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) (2017). The term "chronic disease" refers to those diseases, such as arthritis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3) (West 2015); 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis At the outset, the Board notes it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claim. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a right shoulder condition. Post-service medical records show in November 2006, imaging tests revealed beginning joint arthrosis, but the right shoulder joint was also noted to be "still normal." Subsequently, the Veteran was diagnosed with right shoulder arthritis and impingement syndrome, as well as a right rotator cuff tear. The Veteran contends his right shoulder disability originated during service or is otherwise related to strenuous overhead activities performed in service. Alternatively, he contends his right shoulder disability was caused or has been aggravated by his service-connected left shoulder disability. The Veteran was afforded a VA examination in November 2016. The examiner opined that the Veteran's right shoulder disability was unrelated to service or to his service-connected left shoulder disability. In its May 2017 remand, the Board determined the November 2016 opinion was not supported by an adequate rationale. As such, the Veteran was afforded an additional VA examination in October 2017. The examiner noted the Veteran had been diagnosed with right shoulder arthritis and impingement syndrome, and had suffered a right rotator cuff tear. She noted the Veteran's report that he suffered from right shoulder pain during service. The examiner noted that examinations in 1986 and 1987 showed no complaints related to the right shoulder, and that there was no documented treatment of a right shoulder condition during the 1990s. Ultimately, the examiner opined the Veteran's right shoulder condition was less likely than not related to service. In this regard, the examiner reiterated she had considered the Veteran's lay statements. However, she stated, the Veteran had had numerous evaluations by physicians in the 1980s during and after service, and these evaluations were silent for a right shoulder condition. She stated the first diagnosis of a right shoulder condition was in 2006 in Germany when imaging tests showed beginning arthrosis. She noted that 2015 imaging showed mild to moderate degenerative changes as well as rotator cuff tendinopathy, and she stated the progression of the Veteran's condition over the previous decade was considered to be wear and tear due to the aging process and a lateral downsloping of the acromion. She then cited several medical articles in support of her opinion. In a December 2017 addendum, the examiner opined it was less likely than not the Veteran's right shoulder disability had been caused by his service-connected left shoulder disability. In this regard, the examiner stated the Veteran's right shoulder condition was due to aging, as the objective evidence showed mild degenerative changes consistent with the natural aging process. She further noted the Veteran reported he avoided overhead activities, sports, and repetitive shoulder movements, and thus there was no obvious repetitive overhead strain or injury to the right shoulder caused by non-use of the left, non-dominant shoulder. With regard to aggravation, the examiner reiterated that there was no indication of repetitive overhead strain or overuse of the right shoulder caused by the Veteran's left shoulder condition, noting that the Veteran reported having a sedentary lifestyle. She again stated her opinion that the Veteran's right shoulder condition was solely due to the natural aging process, and was not shown to be in a state worse than that expected by this process. After a thorough review of the foregoing, and the entire record, the Board finds a preponderance of the evidence weighs against the Veteran's claim. In sum, the evidence shows that no right shoulder condition was treated or diagnosed until 2006, many years after the Veteran's discharge. The Board acknowledges the Veteran's contentions that his right shoulder condition originated during service. However, after review, the Board finds the absence of any documented complaints or treatment related to the right shoulder during or shortly after service, despite documented treatment of numerous other medical conditions, to be more probative than statements made by the Veteran many years later in connection with his claim for VA benefits. The Board also acknowledges the Veteran's contention that his right shoulder disability was caused or aggravated by his service-connected left shoulder disability. In this regard, the Board notes that while the Veteran might sincerely believe this to be the case, as a layperson, he is not competent to provide an opinion concerning these matters, which require medical expertise. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). The Veteran has not submitted, and there is otherwise no medical evidence of record, to support his contentions. Instead, the only medical evidence to address the etiology of the Veteran's right shoulder disability weighs against his claim. As the Board has determined a preponderance of the evidence weighs against the Veteran's claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs