Citation Nr: 20002299 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 17-36 787 DATE: January 14, 2020 ORDER Service connection for a right shoulder disability is denied. FINDING OF FACT The weight of the evidence fails to show that it is at least as likely as not that the Veteran’s right shoulder disability that pre-existed service was aggravated therein. CONCLUSION OF LAW The criteria for service connection for the right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard from October to December 1971. In a May 2015 rating decision, the Regional Office (RO) denied his June 2014 claim for service connection for a right shoulder disability. The Veteran disagreed with the RO’s decision and appealed to the Board of the Veterans’ Appeals (Board). In seeking service connection for his disability, the Veteran is contending that his preservice right clavicle fracture noted at his pre-enlistment physical examination in August 1971 and his right acromioclavicular (AC) joint degenerative arthritis determined by the Medical Evaluation Board in November 1971 to have preexisted service and rendered him unqualified for his enlistment, were aggravated by his service where he dislocated his right collarbone at the right AC joint. In his notice of disagreement (received in November 2015), statement in support of claim (received in February 2016), and substantive appeal (VA Form 9 received in June 2017), the Veteran explains that that he broke his right clavicle in a bicycle accident at the age of 16 and then erroneously was enlisted in service, where he dislocated his right collarbone during a horizontal ladder climbing exercise in basic training. He reported hearing a pop and feeling excruciating pain in his AC joint. With that, the Veteran believes that the accident aggravated the pre-existing shoulder disability, causing further internal damage to his right AC joint and rendering him unfit for duty. In support of his claim, the Veteran submitted his private treatment records from Southwest Medical Associates and Nevada Orthopedic & Spine Center, both received in April 2015. The Veteran points out that these private records include scans of two views of his right shoulder showing damage to right clavicle (which the Veteran places prior to his enlistment and pre-enlistment physical) and anterior sternoclavicular dislocation of the right clavicle (which the Veteran attributes to the maneuvers on a horizontal ladder in basic training). As such, he is contending that his preservice right shoulder disability was aggravated by service. Upon reviewing the Veteran’s contentions, the applicable law, and all evidence of record, the Board has concluded that an award of service connection for his right shoulder disability is not warranted for the following reasons. In cases, such as this, where the evidence shows that the Veteran’s preservice right shoulder disability was recorded at his August 1971 physical examination. Moreover, the medical officer noted that the right shoulder disability was still symptomatic with exercise and the right shoulder was specifically listed under the defects section of the examination. Because a pre-existing disability was noted by the enlistment physical, service connection may be granted only if the evidence of record shows that his preservice disability was aggravated in service, meaning that it was made permanently worse beyond the natural progression of the preservice disability. See 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306; Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). To show aggravation, the evidence of record must first show an increase in the severity levels of the disability during service, with the burden on the appellant to establish that aggravation occurred. See 38 U.S.C. § 1153. With active duty claims, if such an increase is shown the burden would shift to VA to show by clear and unmistakable evidence that any permanent worsening was not beyond the natural progression of the disability. Id. However, the law draws a clear distinction between service on active duty and active duty for training in the Army National Guard (ACDUTRA), to include basic training. See 38 U.S.C. §§ 101(21)-(24), 106. For the periods of ACDUTRA, the aggravation may not be conceded, even if the evidence shows a worsening of the preservice disability in service. By implication, the Veteran has the burden to show both that he injured his right shoulder during active duty for training and that such injury caused a permanent worsening of the disability, beyond the natural progress of that disability during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran believes that this is the case here. He acknowledged a history of a right clavicular fracture and the military examiner noted the objective clinical evidence of callous formation and limitation of function in the right clavicle. The MEB’s findings in November 1971 reflect the diagnoses of the degenerative and traumatic arthritis of right AC joint and the malunion of right clavicle, noting preservice history of right clavicle fracture and AC joint degenerative arthritis, manifesting as pain in overhead work and marked crepitus (noticeable popping) in the right AC joint. The Veteran emphasizes that he heard a popping sound and felt excruciating pain in his right shoulder during the climbing exercise in basic training. The Veteran believes that he dislocated his right clavicle in that moment, not earlier, thereby showing an increase in his preservice disability during service. With that, he further believes that this exercise not only contributed to his collarbone dislocation but also caused further internal damage to his AC joint that had already been damaged prior to his enlistment. The Board recognizes that the Veteran may competently report the symptoms and maneuvers, such as hearing a pop and feeling excruciating pain in his AC joint during a ladder climbing exercise in basic training. However, absent any evidence that he has specialized training, knowledge, or experience in rendering medical opinions, the Veteran is said not to possess the requisite expertise to competently discuss a pathology of the medically complex musculoskeletal disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran’s report of dislocating his right collarbone in basic training has suggested some worsening of his preservice disability in service, the evidence does not show that the Veteran has the requisite expertise to render a medical opinion as to whether such a worsening was permanent and beyond the natural progress of his original shoulder injury and disability. This is why VA obtained a medical opinion rendered in April 2015. The April 2015 VA examination report reflects a medical opinion that the Veteran’s claims file is devoid of the evidence showing an objective worsening of his preservice right shoulder disability beyond its natural progress during service. The examiner explains that any documented associated complaints during service, to include the Veteran’s marked crepitus in his right AC joint (noticeable popping in his right shoulder), malunion of the clavicle (dislocated collarbone), functional limitations in overhead work, and pain, all are clinically consistent with the natural progress of his preservice clavicle fracture and AC joint arthritis. Upon reviewing recent relevant medical research, the VA examiner determined that traumatic arthritis of the AC joint and malunion of the right clavicle are clinically associated with history of a fractured clavicle. The examiner explained at some length the mechanism of how clavicle fractures cause both arthritis and clavicle malunion due to a complex interplay of multiple factors. Absent any evidence to the contrary, the examiner concluded that both the AC joint arthritis and malunion of the clavicle are among the most likely complications of the preservice clavicle fracture which was not specifically caused by or related to any event in service. Based on this rationale, the examiner ultimately concluded that that the Veteran’s right clavicle fracture and right acromioclavicular AC joint arthritis pre-existed his service and any findings noted during his 67 days on active duty, such as stiffness, dislocated clavicle, marked crepitans of right AC joint, functional limitations in overhead work, and pain are clearly and unmistakably due to the natural progress of his preservice right clavicle fracture and the resulting AC joint arthritis. The Veteran has not provided any competent evidence to the contrary. As discussed, the Veteran is not competent to render medical opinions, and no medical opinion has challenged the VA examiner’s conclusion, which is further bolstered by the MEB’s finding that the Veteran’s right shoulder disability pre-existed his service and was not aggravated by or due to his service. The Veteran’s private medical treatment records (received in April 2015) reflect the more current severity levels of his right should disability attenuated form service by more than forty years. Unfortunately, none of these medical records addresses any increase in the severity levels of the Veteran’s right shoulder disability during his service. Further, apart from the Veteran’s own statements to his private physicians (as reflected in a Dr. C.S.’s note that the Veteran “would like to mention this [history] to me today to have documentation”), nothing in his private records objectively shows or suggests that his right shoulder disability worsened permanently and beyond its natural progress during service. As such, the Veteran’s private medical records at most confirm a history of the right clavicle fracture, right AC joint arthritis, and right clavicle malunion, which have already been established in this case and thus have no probative value in advancing the Veteran’s appeal before the Board. In sum, the only disputed fact in this appeal is whether the Veteran’s dislocating his right clavicle was permanent and beyond the natural progress of his preservice right clavicle fracture and the resulting right AC joint arthritis. The weight of the evidence tips the scales against the claim. Without any supporting medical evidence, the Veteran’s belief that his right clavicle malunion during the climbing exercise caused a further internal damage to his AC joint does not translate into the competent evidence showing a permanent worsening beyond the natural progress of his preservice right shoulder disability. The record is devoid of any medical evidence showing that the Veteran’s clavicle malunion caused any damage to his preservice right AC joint arthritis. Moreover, in terms of permanence, the Veteran’s private medical treatment records from Poudre Valley Memorial Hospital received in April 2015 include an August 1975 Dr. D.C.K.’s note that the Veteran “had a little difficulty with shoulder problems in the past but nothing of a serious nature.” As such, this evidence also does not suggest any permanent damage beyond the natural progress of the Veteran’s preservice disability. Ultimately, the VA examiner’s review of the Veteran’s claims file and recent medical research revealed no objective clinical evidence that a malunion of the right clavicle is due to any specific event during his service and is clearly and unmistakably due to the natural progress of his previously fractured clavicle. In weighing the Veteran’s belief that dislocating his right collarbone during the ladder climbing exercise in basic training aggravated his preservice AC joint against the VA examiner’s opinion that the evidence shows no objective worsening beyond the natural progression of his pre-existing right should disability, which is aligned with the Medical Board’s determination that this disability was aggravated neither by nor due to service, the Board accords the medical evidence of record a greater probative weight. As such, the evidence weighs against the Veteran’s claim. Accordingly, absent the medical evidence showing that the Veteran’s right shoulder disability worsened permanently and beyond its natural progress during his service, service connection for his right shoulder disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Bardin, 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.