Citation Nr: 19123713 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 13-22 068 DATE: April 2, 2019 ORDER Entitlement to service connection for residuals of right shoulder injury, status post-rotator cuff (RC) repair (right shoulder disorder), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the currently diagnosed right shoulder disorder had onset in active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for right shoulder disorder have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Following notification of the provisions of the Rapid Appeals Modernization Program pursuant to the Appeals Modernization Act (03/18/2018 Correspondence), the Veteran “Opted In” for the Higher Level of Review track (08/20/2018 RAMP Opt-In). Although the Veteran responded to correspondence he received from VA, his appeal is not eligible for the RAMP, as it was pending before VA prior to February 19, 2019. Hence, VA will continue to handle his appeal under the pre-existing (Legacy) appeals system. In a decision dated in February 2018 (02/23/2018 BVA), the Board denied the Veteran’s appeal, and he appealed to the Court of Appeals for Veterans Claims (Court). In August 2018, while the appeal was pending, the Veteran, through counsel, and the Secretary submitted a Joint Motion for Remand (JMR) to vacate the Board decision in part and to remand it back to the Board. See 08/06/2018 CAVC, P. 2. In an Order also dated in August 2018, the Court granted the JMR, vacated in part the February 2018 Board decision, and remanded it to the Board for further appellate review. Id., P. 9. Entitlement to service connection for right shoulder disorder Legal Requirements Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). 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. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board acknowledges that the Veteran is fully competent to testify to the history of his disorder as he experienced it, to include the date of onset of his symptoms and the specific symptoms he experienced. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). Nonetheless, all competent evidence must be tested for credibility and weight. Discussion There is no issue as to whether there was an in-service injury or a currently diagnosed right shoulder disorder. STRs note that the Veteran dislocated his shoulder in basic training in September 1975, that he was in a cast for 30 days, and that he presented in March 1977 with subsequent complaints of right shoulder pain which was assessed as bursitis. See 01/11/1980 STR-Medical, 2nd Entry, P. 83, 86. Records of the treatment administered for the dislocation, if any, are not in the STR. In any event, the Veteran did not indicate a history of shoulder problems on his May 1979 Report of Medical History for his examination at separation (01/11/1980 STR-Medical, 1st Entry, P. 11), and the May 1979 Report of medical Examination reflects that his upper extremities were assessed as normal. Id., 2nd Entry, P. 25-26. In September 1979, the Veteran certified that there had not been any change in his health since the May 1979 physical examination. Id., P. 9. The Veteran initially applied for VA compensation in November 1979 (11/02/1979 VA 21-526). The February 1980 VA examination report reflects the Veteran’s reported history of a dislocation of the right shoulder in basic training, and that he had not had any further problems with it. The examiner noted that he “checked the right shoulder quite carefully.” See 02/11/1980 VA Examination, P. 11. The examination of the right shoulder was normal in all aspects, to include a normal x-ray. Hence, the examiner diagnosed history of right shoulder dislocation, resolved. Id., P. 7, 11-12. Based on the examination results, the AOJ, in a March 1980 rating decision (03/10/1980 Rating Decision), denied the claim. The Veteran did not appeal the decision, and it became final. See 38 C.F.R. §§ 3.156, 20.302. The February 2018 Board decision reopened the claim based on medical evidence added to the file in March 2010. See 06/17/2010 Medical Treatment-Non-Government Facility, P. 5. That evidence was a record of the Veteran’s non-VA physician, L.B., M.D., that noted the Veteran’s report that he had injured his right shoulder when he fell backward onto it. The Veteran is noted to have reported further that he had injured the shoulder while in service (the examiner noted “hurt his shoulder terribly;” it appears that that is the examiner’s description, as the phrase is not in quotes), and that he had no ability to raise the shoulder since the injury. The examiner believed it could have been a rotator cuff injury, and noted further that x-rays had shown distinct calcification beneath the AC joint. Id. The Board determined that per the February 1980 VA examination, the 1975 in-service injury had resolved. Hence, the probative evidence of record was against a finding of a causal relationship between the Veteran’s currently diagnosed right shoulder arthralgia and his in-service injury. See 02/23/2018 BVA, P. 14. The consensus of the parties in the JMR was that the February 2018 Board decision did not provide an adequate explanation of how it could deny the claim on the basis of the findings at the 1980 VA examination when that examination determined that the in-service injury had resolved, but then reopen the claim on the basis of medical evidence of a currently diagnosed right shoulder arthralgia with no current medical assessment of whether the current disorder is causally related to the in-service injury. See CAVC P. 4-5. In other words, the Veteran could not read the February 2018 Board decision and understand why his appeal was denied. The Board now provides additional explanation. The Veteran does not dispute the findings of the February 1980 VA examination, where the examiner diagnosed that the 1975 in-service right shoulder dislocation had resolved. That was a medical determination, not the Board’s. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). From that medical determination it logically follows that there was no residual in-service injury to aggravate. As such, there would have to be medical evidence of a nexus between any currently diagnosed right shoulder disorder and the Veteran’s active service, to include the in-service injury. To state it simply, such evidence was not of record, nor was the Board required to remand to seek to obtain it, as the Board deemed the medical evidence of record sufficient to decide the claim. See 38 C.F.R. § 3.159(c)(4). In this regard, as the record lacked credible evidence of continuity of symptomatology, or probative evidence suggesting a nexus to service, the criteria giving rise to the need to afford a VA examination had not been satisfied. McLendon v. Nicholson, 20 Vet. App. 79 (2006) The sole evidence on a potential link with the Veteran’s service was Dr. B’s notation that the Veteran’s 1975 in-service injury sounded like it “could have been” a rotator cuff injury, and he diagnosed in part an old, significant rotator cuff injury that had never been worked on, with current disability demonstrated. See 06/17/2010 Non-Government Facility, P. 5. The Board notes first, that Dr. B’s notation and diagnosis was presumed credible for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Once the claim was reopened, however, it was subject to testing for weight and credibility, and that it is where it fell short. Dr. B’s March 2010 entry clearly indicates that his assessment was heavily influenced by the Veteran’s reported history of his right shoulder. Specifically, that he had not been able to raise his arm since injuring the right shoulder in service. Although a physician may properly rely on a patient’s report of his/her history in formulating both a diagnosis and etiology, see Jandreau, 492 F.3d at 1377, the resulting diagnosis and opinion on etiology are no better than the history on which it is based. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The Board specifically found in the February 2018 decision that the Veteran’s assertions and testimony of continuous right shoulder symptoms were not credible, as the evidence of record contradicted the Veteran’s reports. As part of his assessment, Dr. B noted that the Veteran had “a 20 percent disability in support of his injury.” It is not clear if that was the extent of resultant disability assessed by Dr. B., or that the Veteran told him that he was disabled to that extent. Even if the former, it does not tip the scales towards the Veteran. As noted in the February 2018 Board decision, the record on the right shoulder was essentially silent until 2010. The Board acknowledges that lay evidence may not be summarily rejected because of the absence of contemporaneous medical documentation. (emphasis added). See Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (2006). Nonetheless, the evidence of record reflects the Veteran’s report of no right shoulder history when there was ample opportunity to do so. An entry dated in December 2009 by a cardiology clinic notes in the review of systems that the Veteran had no arthralgia, myalgia, or stiffness. See 07/21/2010 Non-Government Facility, 2nd Entry, P. 6. In May 2009, an entry by the Veteran’s primary health clinic, the same clinic where Dr. B treated him in 2010, notes that while the Veteran was there for his diabetes, hypertension, and cholesterol, he complained of a lot of right knee pain, and that the review of his systems revealed those as the Veteran’s sole complaint. See id., 3rd Entry, P. 7. Hence, the Board finds the Veteran’s report to Dr. B that he had not been able to raise his shoulder since the in-service right shoulder injury not credible. The fact that the Board finds the Veteran’s lay reports to Dr. B not credible significantly diminishes the weight to be accorded Dr. B’s assessment and opinion of etiology. See Coburn v. Nicholson, 19 Vet. App. 427, 432-33 (2006). Instead, the Board finds far more credible, and attaches significantly more weight to, the Veteran’s then contemporaneous report to the VA examiner in 1980 that he had not had any further problems with the right shoulder, which was over three years after his last in-service complaint. See Curry v. Brown, 7 Vet. App. 59 (1994). The fact that the Veteran started continuous treatment with VA in 2010, post-Dr. B, and that he underwent RC repair in October 2011 does not vitiate the fact that there is no credible evidence of active right shoulder symptomatology between 1980 and 2010 when he fell backwards against the shoulder. (Emphasis added). Since the medical evidence of record as of 1980, which included a negative x-ray, is that the in-service right shoulder injury had resolved without any residual, the Board does not violate Colvin by concluding that the preponderance of the evidence of record is against a finding that his currently diagnosed right shoulder arthralgia, status post-RC repair, is causally connected to the 1975 in-service injury; the Board again so finds. The Board acknowledges the Veteran’s lay opinion that his currently diagnosed right shoulder disorder is due to the 1975 in-service injury. See 05/23/2017 Hearing Testimony. When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a claimant’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board finds that opining on a nexus between a current joint disorder and an in-service injury that occurred decades earlier requires medical training. See 38 C.F.R. § 3.159(a). There is no evidence that the Veteran has medical training. Hence, his opinion on the issue has no probative value. CONTINUED ON THE NEXT PAGE   Since the Board finds that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. Gilbert, 1 Vet. App. at 53. Hence, the Board finds that an allowance of entitlement to service connection is not indicated. 38 C.F.R. § 3.303. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder