Citation Nr: 18122004 Decision Date: 07/27/18 Archive Date: 07/27/18 DOCKET NO. 13-09 073 DATE: July 27, 2018 ORDER Entitlement to service connection for a left shoulder disability is denied. FINDINGS OF FACT 1. The Veteran was placed on a physical profile on July 24, 1992 for a left shoulder injury. 2. On January 21, 1994, the Veteran’s upper extremities were reported to be normal on examination. The Veteran did not report a painful shoulder on his January 1994 Report of Medical History. 3. In an October 1994 examination, the Veteran reported a history of falling from off a truck at least 4 times and reported residual low back symptoms. The Veteran did not report any left shoulder symptoms and no left shoulder disability was found on musculoskeletal examination. 4. The Veteran’s current diagnoses of residuals of left rotator cuff tear, residuals of torn labrum, degenerative joint disease of the left acromioclavicular joint, and left shoulder impingement syndrome were not incurred during, or are otherwise related to, the Veteran’s period of active service. 5. Symptoms of the Veteran’s degenerative joint disease of the left acromioclavicular joint have not been continuous since separation from service, and did not manifest to a compensable degree in the year following separation from service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Entitlement to service connection for a left shoulder disability The Veteran has asserted that he developed a left shoulder disability as a result of injuries incurred during his active service. In November 2011, the Veteran submitted an application for service connection for left shoulder impingement syndrome. The Veteran’s service medical records (SMR) indicate that the Veteran sought treatment related to a left shoulder injury on July 24, 1992. A medical care note reports that the Veteran complained of pain in his left shoulder after playing football the day before. The Veteran bumped his shoulder into another player and felt a “burning sensation.” The Veteran didn’t report any previous shoulder trauma at that time. The examiner noted “mild swelling and tenderness.” An assessment of left AC pain was provided and x-rays were ordered. A radiologic consultation report stated that no osseous abnormalities were noted. The Veteran was placed on a physical profile due to a left shoulder injury that included no running or push-ups for one week. A Report of Medical Examination from January 1994 reported normal upper extremities and other musculoskeletal findings, other than a right inguinal hernia. A Report of Medical History completed by the Veteran on January 21, 1994 stated that the Veteran was healthy, taking no medication, and denied any history of swollen or painful joints. He also denied a history of a painful or “trick” shoulder. In October 1994, two months after separating from service, the Veteran underwent a VA examination. The Veteran reported that his lower back had been bothering him since he separated from service in August 1994. He stated that he had fallen at least five times from trucks during exercises, most recently being in May 1994. In relation to the evaluation of the musculoskeletal system, the examiner noted that the Veteran reported the following: injuring his right wrist while dropping to do push-ups in basic training, that his knees began hurting while running up and down hills, and that he injured his lower back while falling off the back of a truck. No left shoulder complaints were recorded and a diagnosis of a left shoulder disability was not provided. The Veteran’s VA treatment records note that he first sought treatment at the Dickenson Community Based Outpatient Clinic in August 2009. The Veteran reported low back discomfort since 1994. He stated that he initially thought he could just “deal with it on [his] own,” and, therefore, never sought health care for the back; however, in prior eight months to a year he reported experiencing increased discomfort. The Veteran’s past medical history was notable for the following conditions: allergies, mild intermittent asthma, depression, anxiety, bilateral knee discomfort, right wrist discomfort, and low back discomfort. No complaints related to pain or discomfort in his left shoulder were reported. In May 2011, the Veteran was seen for an evaluation of his left shoulder by R.I., M.D. The Veteran reported multiple injuries in the military and reported problems with overhead lifting and reaching. The examiner noted that the Veteran had previously attempted physical therapy. He was diagnosed with a left shoulder rotator cuff tear and degenerative joint disease of the acromioclavicular joint. In February 2012, the Veteran was provided a VA examination regarding his left shoulder disability. The Veteran reported that he had been involved in accidents during his active service where he fell off a truck at least four times while he was training for deployment. He stated that he “mostly” landed on his back but felt that he also injured his shoulder. He stated that he was not seen for his shoulder at that time. The examiner noted that the Veteran was seen for a football injury to the left shoulder in July 1992. Pain and swelling were found on examination. X-rays taken at that time were reported to be normal. The Veteran reported increasing pain in the left shoulder area over the prior three years. He stated that, after he had surgery for the left posterior neck due to a benign tumor, he had a flare-up of the shoulder during recovery. He stated he underwent two weeks of physical therapy and has had recurrent pain and problems with range of motion since that time. The Veteran was diagnosed with left shoulder impingement syndrome. The examiner opined that the Veteran’s left shoulder impingement syndrome was less likely than not caused by, or a result, of the in-service shoulder injury in 1992. The examiner stated that this opinion was based upon the lack of any evidence at the time immediately after the initial injury or after discharge from active duty and that there was no mention of symptoms or treatment until 2010 timeframe, which he opined made it highly unlikely that the service injury would be the reason for his shoulder condition. In April 2014, the Veteran provided testimony regarding the history of his left shoulder condition. The Veteran stated that after his football injury in 1992 that he continued to suffer from left shoulder pain during his period of service. He stated that he fell off two-and-a-half-ton cargo trucks a total of five times during his period of service, and that he landed on his left and right shoulders. He stated the fall would be from 18 to over 20 feet. He indicated other times he landed straight down and injured his back. The Veteran stated that the pain “would come and go, but it was very persistent after his initial fall.” He stated that his mother is a nurse and she told him to “take three to four to minimalize this ongoing pain with his shoulders.” The Veteran stated that he continued to self-treat until he went to a physician and was told that he needed surgery. The Veteran stated that he had continuous problems with his left shoulder after his separation from service. He reported that his physician told him that after looking at the x-rays, he felt that the Veteran had something that had been hidden for quite a few years due to the severity of his condition. In March 2015, a new medical opinion was obtained regarding the etiology of the Veteran’s left shoulder disability. Upon review of the Veteran’s claims file, the examiner opined that the Veteran’s left shoulder disability was less likely than not incurred in, or caused by, the claimed in-service injury. The examiner explained that this opinion was based upon the following: the fact that the Veteran did not receive treatment in service beyond the symptoms reported in July 1992; that a shoulder x-ray from July 28, 1992 was negative for any acute pathology; that a separation physical in 1994 did not report any ongoing shoulder condition; that the Veteran sought treatment multiple times at the VA in 2009 (September, October, November) and did not report any shoulder problems during these visits; and that the Veteran had a general medical compensation and pension examination in 1994 where multiple issues were discussed but he failed to mention any chronic or ongoing issue with his left shoulder. The examiner opined that it is highly unlikely, given the veteran’s history of visits to his primary care physician and for different compensation and pension examinations and other opportunities, that he would not mention any problems with his left shoulder until 2011 if he in fact had an ongoing issue with his left shoulder and that it is unlikely that any injury suffered during his active service would cause his left shoulder disability many years after separation from service. The Veteran submitted an opinion provided by his physician, R.I., M.D. The physician stated that he knew the Veteran well and that the Veteran was first seen in his office in May 2011. The physician stated that the Veteran was first seen for his left shoulder and that the Veteran made it quite clear that he had several injuries to the left shoulder, which were attributed to his military service. The physician stated that he had “no doubt” that his left shoulder rotator cuff tear and subsequent surgery is attributed to the Veteran’s in-service injuries. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Board notes that the Veteran is competent to testify as to his perceived symptoms, such as his complaints of pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). Additionally, service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection for the chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker, at 1331. While the Veteran has a current diagnosis of degenerative joint disease (or arthritis) of the left shoulder, the Board finds, however, that service connection for arthritis is not available under 38 C.F.R. §3.309 (a) the credible evidence of record weighs against a finding that the Veteran had arthritis during service or within a year of separation from service. While the evidence indicates that the Veteran suffered an injury to his left shoulder in February 1992, x-rays were taken at that time and no significant abnormalities were reported. While the Board finds credible the Veteran’s reports of several falls from trucks after his February 1992 injury during his active duty, the Board does not find credible the Veteran’s reports that he has had recurrent left shoulder pain since that time. The Board finds probative the Veteran’s examination in January 1994 that reported that the Veteran’s upper extremities were normal. The Veteran also failed to report any recurrent pain or injury to the left shoulder in his January 1994 Report of Medical History and he denied any history of a painful or trick shoulder. Further, the Veteran had a comprehensive VA examination in October 1994, after his separation from service. The Veteran reported complaints regarding to his low back, his knees, and his right wrist at that time. During this evaluation, he included reports of the repeated falls from the trucks that he indicates caused him current left shoulder condition, but failed to mention that they were resulting in any left shoulder symptoms at that time. As both the Veteran’s January 1994 examination and the October 1994 VA examination are silent to any report of a left shoulder condition, the Board finds that the Veteran’s reports of a continuous symptoms of left shoulder pain since to be not credible. As the evidence does not otherwise indicate a diagnosis of degenerative joint disease or left shoulder arthritis during service or within a year of separation from service, the Board finds that service connection pursuant to 38 C.F.R. § 3.303 (b) is not warranted. The Board notes that service connection for a left shoulder condition would still be warranted based upon a finding that the Veteran’s current shoulder condition is due to an injury, event, or disease during his period of active service. Unfortunately, the Board finds that the evidence of record weighs against a finding that any current left shoulder disability was caused by, or incurred in, his period of active service. The Board finds the March 2015 VA examiner’s opinion outweighs the private opinion provided by the Veteran’s physician and to be the most probative evidence of record regarding the etiology of the Veteran’s current left shoulder diagnoses, including the residuals of a left rotator cuff tear, residuals of a torn labrum, degenerative joint disease of the left acromioclavicular joint, and left shoulder impingement syndrome. The Board notes that the March 2015 VA examiner reviewed the Veteran’s claims file and discussed in the Veteran’s medical history in detail. The examiner noted that the Veteran did not report any left shoulder symptoms at separation from service, did not demonstrate symptoms of a left shoulder disability during his separation examination or during the October 2014 VA examination, and did not report a history of left shoulder symptoms while seeking treatment multiple times at the VA in 2009. To the extent that the examiner discounted the Veteran’s reports of recurrent left shoulder symptoms since his period of service, including his 2014 hearing testimony, the Board does not find these reports to be credible. See Caluza, 7 Vet. App. 498 (1995). The Board finds that the Veteran’s statements demonstrate internal inconsistency as the Veteran reported during his hearing that he has suffered from left shoulder symptoms continuously since his separation from service; however, these reports conflict with his denial of symptoms of a painful shoulder in his Report of Medical History in January 1994. Further, the Veteran’s initial reports regarding his falls from the cargo trucks in October 1994 do not mention any injury to the left shoulder, despite his reports of recurrent symptoms afterwards during his hearing testimony. See H.T., p.10. The Board also notes that these reports are contrary to the history provided prior to the Veteran’s left shoulder operation in 2012. In the History of and Physical dated February 10, 2012, the Veteran’s physician states in the Veteran’s past medical history that the onset of this injury dates back about 2-3 years ago when the Veteran started having problems with the left shoulder and slowly, gradually developed loss of motion. Based upon these conflicting reports, the Board finds that the Veteran’s reports of recurrent pain since his period of service to be not credible. Also, the Board finds that the March 2015 VA examiner’s opinion outweighs the private opinion provided by R.I., M.D. The opinion of the private physician fails to address several pertinent facts of record. First, the Board notes that this opinion fails to address his own annotations made in the History of and Physical dated February 10, 2012 that indicates the onset of the Veteran’s symptoms to be in the prior 2-3 years. Additionally, the examiner indicates that his opinion is based largely upon the statements of the Veteran, whose statements regarding his recurrent shoulder pain since service have been deemed not credible. Further, the physician does not address the Veteran’s Report of Medical History in 1994 denying a painful or trick shoulder, the 1994 VA examination where the Veteran discussed falling from the trucks but did not indicate any residual shoulder symptoms, or his 2009 VA treatment which fails to report any shoulder symptoms. As the examiner does not address these issues, including his own report in 2012 regarding the onset of the Veteran’s symptoms, the Board finds that VA examiner’s 2015 opinion to be of greater probative value regarding the etiology of any current left shoulder disability. To the extent the Veteran has asserted that any current left shoulder disability is due to, or caused by, his period of service, the Board finds that the Veteran is not competent to provide an opinion regarding the development of a left shoulder disability several years after separation from service. See Jandreau, at 1376-77. To the extent that the Veteran reported that R.I., M.D. told him that after looking at the x-rays, he felt that the Veteran had something that had been hidden for quite a few years due to the severity of his condition. The Board notes that this opinion does not indicate a relationship between any incident of the Veteran’s period of service and his current left shoulder disability. Further, the physician himself did not provide such an explanation in the opinion provided in 2014 and does not match the onset date in the prior 2-3 years describe by the R.I., M.D. from his History of and Physical dated February 10, 2012. In summary, the Board finds that the preponderance of the evidence weighs against a finding that any of the Veteran’s current left shoulder disabilities, including of residuals of left rotator cuff tear, residuals of torn labrum, degenerative joint disease of the left acromioclavicular joint, and left shoulder impingement syndrome, are due to his period of active service. The evidence also weighs against a finding that the Veteran’s degenerative joint disease of the left shoulder began during service or within a year of separation from service. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that evidence of record indicates that the duty to notify has been satisfied. Concerning the duty to assist, the record reflect that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA treatment records, and private treatment records. VA also obtained multiple medical opinions related to the Veteran’s claim for service connection. The Board finds that that the March 2015 opinion is adequate to render a determination as to the issue on appeal. The examiner conducted a thorough examination of the Veteran in 2012 and his 2015 opinion contains a description of the history of the Veteran’s current left shoulder disability; considers the relevant medical facts and principles; and provides opinions regarding the nature and etiology of the Veteran’s disabilities diagnosed during the appeal period. The Board notes that the 2015 opinion considers the Veteran’s statements made during his 2014 hearing and indicates consideration of the Veteran’s contentions that have been deemed credible; therefore, the Board finds that the 2015 opinion is adequate to resolve the issue on appeal. While the Veteran indicated in his March 2013 VA Form 9 that the VA should have obtained the x-ray films from his 1992 in-service x-ray, rather than a report of the findings of that study, the Board notes that the evidence indicates that VA has attempted to obtain all available records from the Veteran’s period of service, and none of the evidence indicates that outstanding service treatment records could be obtained. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained. Accordingly, the Board finds that the duty to assist has been satisfied and there is no reasonable possibility that further assistance would be capable of substantiating the claims decided on appeal. 38 U.S.C. § 5103A (a)(2) (2012). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel