Citation Nr: 19154658 Decision Date: 07/15/19 Archive Date: 07/15/19 DOCKET NO. 18-42 598 DATE: July 15, 2019 ORDER Entitlement to service connection for acromioclavicular joint ostearthritis (claimed as right shoulder condition) is denied. FINDING OF FACT The most probative evidence of record is against a finding that the Veteran’s acromioclavicular joint ostearthritis (claimed as right shoulder condition) was aggravated by his service-connected disabilities, including right ankle disability, lumbar disc syndrome, and sciatic radiculopathy of the right lower extremity. CONCLUSION OF LAW The criteria for entitlement to service connection for acromioclavicular joint osteoarthritis (claimed as right shoulder condition) have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1995 to June 1999. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision, inter alia, denied service connection for acromioclavicular joint osteoarthritis (claimed as right shoulder condition). The Veteran timely appealed. 1. Entitlement to service connection for acromioclavicular joint osteoarthritis The Veteran seeks an award of service connection for acromioclavicular joint osteoarthritis (claimed as right shoulder condition). Specifically, in his March 2017 statement, the Veteran alleged that he had a shoulder injury which was not service related and that in June 2016 the Veteran sustained a fall aggravating his injury. The Veteran claims he would not have sustained the fall but for his service-connected disabilities. As such, he believes that the aggravation to his shoulder is related to his service-connected right ankle disability, lumbar disc syndrome, and sciatic radiculopathy of the right lower extremity. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service occurrence 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2018). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or, if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. §3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. §3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. §3.310(a). Establishing a service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. §3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. §5107(b) (2012); 38 C.F.R. §3.102 (2018). An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must be preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s VA treatment records indicate that he sustained his original right shoulder injury in 2007 when he fell off a bike. He tore his rotator cuff, his bicep tendon and had arthroscopic repair surgery. He had physical therapy with good results and no significant functional issues. In June 2016 he fell when he snagged his right foot going up the stairs, he caught himself with his right arm and noted that he jammed the arm but was able to go on. The next day he began having issues with pain and limited motion in the right shoulder. In October 2016, the Veteran underwent an MRI of his right shoulder. The MRI revealed mild infraspinatus tendinosis with minimal partial-thickness articular surface tear in the anterior-most tendinous insertion. He was diagnosed with acromioclavicular joint arthrosis with marked edema and cystic changes in the distal clavicle. In March 2017, the Veteran underwent an in-person examination for his claim. The Veteran’s medical history along with the history of his injury were reviewed. The Veteran’s shoulder was tested. The VA examiner concluded that it is less likely than not that the Veteran’s right shoulder acromioclavicular joint ostearthritis is proximately due to or is the result of his service-connected disabilities. The VA examiner elaborated that the Veteran does not have any instability in right ankle and that he already had a prior injury with surgery on his right shoulder. Because there is no record of on-going instability in his ankle, there is no relationship between the Veteran’s right ankle and his shoulder condition. The VA examiner also concluded that it is less likely than not that the Veteran’s right shoulder acromioclavicular joint ostearthritis is related to his service-connected lumbar disc syndrome. The VA examiner’s rationale included that the Veteran’s back pain did not cause the June 2016 fall. The Veteran himself reported that the June 2016 fall was caused by catching his right foot on the stairs, not his back pain. As such, the Veteran’s right shoulder condition is not related to his service-connected lumbar disc syndrome. Finally, the VA examiner concluded that is less likely than not that the Veteran’s right shoulder condition is related to his service-connected neuropathy of the right lower extremity sciatic nerve. The VA examiner noted that the Veteran had an EMG showing evidence of the right chronic L5 neuropathy but there was no evidence of peroneal denervation that would account for dysfunction of the right foot contributing to abnormal gait. As such, there was no evidence that the aggravation of the Veteran’s right shoulder condition is related to his service-related sciatic radiculopathy. After careful review of the record, the preponderance of the evidence is against the Veteran’s claim. The Veteran’s acromioclavicular joint ostearthritis (claimed as right shoulder condition) did not have its onset during service and did not manifest to a compensable degree within one year of service. Indeed, the Veteran is not claiming otherwise. The Veteran’s acromioclavicular joint ostearthritis is likewise not causally related to his service and not aggravated by his service-connected disabilities. While the Veteran injured his right shoulder when he sustained his June 2016 fall, his fall was not related to his service-connected disabilities. The Veteran believes that his ankle, lumbar disc syndrome and lower right extremity radiculopathy together caused him to sustain the June 2016 fall. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the musculoskeletal system, back conditions, ankle conditions, radiculopathy and imbalance. Therefore, it is outside the competence of the Veteran because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2017 VA examiner opinion. The opinion is supported by sound rationale that the Veteran’s service-connected disabilities are not of the type and severity that would cause the June 2016 fall. For example, the Veteran’s right ankle did not have a history of instability and his right lower extremity radiculopathy did not cause dysfunction of the right foot. As such, his service-connected disabilities are not related to his June 2016 fall that caused the aggravation of his right shoulder condition. Moreover, the Veteran’s account of the fall, catching his foot on the stairs, is the cause of the fall and is consistent with the VA medical opinion. In summary, the Veteran’s right shoulder condition was aggravated by his June 2016 fall. However, his service-connected disabilities did not cause the fall. For these reasons, the preponderance of the evidence is against the claim. 38 U.S.C. §5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. at 53. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kuksova, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.