Citation Nr: 20004440 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 11-04 255 DATE: January 23, 2020 ORDER Entitlement to service connection for a left shoulder disability is denied. FINDING OF FACT 1. The Veteran’s Sprengel’s deformity is a congenital condition that pre-existed his service. 2. The earliest post-service complaint referable to his left shoulder is not for many years after his separation from service; the most probative (i.e. most competent and credible) evidence is against a finding of continuity of symptoms since service. 3. The Veteran’s Sprengel’s deformity was not aggravated by his service, meaning worsened beyond its natural progression. 4. He does not have a disability that was incurred during his service and superimposed on his Sprengel’s deformity. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a left shoulder disability. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter was before the Board in December 2013 (when it was remanded), in August 2014 (when the Board denied the claim), in January 2016 (when it again was remanded pursuant to an intervening September 2014 Order of the U. S. Court of Appeals for Veterans Claims granting a Joint Motion for Remand (JMR)), and in June 2017 (when it yet again was remanded to obtain an adequate clinical opinion for the required compliance with the Board’s prior January 2016 remand directive). There has now been the acceptable substantial compliance with the Board’s remand directives, in turn permitting the Board to proceed with re-adjudicating this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (clarifying that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a left shoulder disability The evidence reflects that the Veteran has a congenital condition known as Sprengel’s deformity. VA law distinguishes a congenital “defect” from a congenital “disease”. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Couns. Prec. 82-90 at 2) (July 18, 1990)). A congenital defect is more or less stationary in nature. In the case of a congenital defect, it necessarily pre-dated service but service connection still may be granted for a disability that is superimposed on the congenital defect. A congenital disease is capable of improving or deteriorating. In the case of a congenital disease, service connection may be granted if the disease was aggravated by service – meaning worsened beyond its normal progression.   A November 14, 1978 Report of Medical History reflects that the Veteran reported a medical history including that he had no painful or “trick” joint”, and no loss of normal movement in any limb or joint. However, the summary of all pertinent information notes that he had a left shoulder asymmetric development with no joint difficulty. The corresponding November 1978 Report of Medical Examination reflects that, upon evaluation, he had abnormal findings of elevation of the left scapula, which was not considered disabling and for which there was no pain. The Veteran entered service on November 21, 1978. Service treatment records (STRs) reflect that he was seen on November 30, 1978 for complaints of pain in his left shoulder for one day in duration. Examination disclosed the trapezius muscle appeared larger than for the right shoulder muscle; there was tenderness to palpations, no discoloration; and the left scapula appeared higher than the right scapula. The impression was possible (?) muscle strain due to deformity. A November 30, 1978 X-ray report notes: no acute fracture or dislocation is seen; visualized clavicle appears intact; left scapula appears deformed. There is an accessory ossicle at the medial aspect of the scapula with pseudoarthrosis, which the examiner thought could be congenital and not clinically significant. When the Veteran was seen on December 1, 1978, an examination revealed an obviously deformed scapula with no muscle movement of the trapezius along the wing medial and distally. The Veteran had decreased range of motion, which he reported was owing to his pain. The examiner indicated the scapula appeared fixed and that the left arm was much smaller than the right. The assessment was that the Veteran had a congenital condition of the scapula with resultant decrease in range of motion of the left arm. It was noted that his complaint of pain was secondary to the overhead ladder.   A December 8, 1978 narrative summary report, associated with medical board proceedings, shows a complaint of left shoulder pain. The Veteran reported a history indicating that he had injured his left shoulder on a horizontal (overhead) ladder two days before the present treatment began. After review of prior history and systems, the examiner indicated the Veteran had a congenital deformity of the left scapula. After evaluation, the diagnosis was Sprengel’s deformity, left shoulder. The Veteran separated from service a short time later, on December 20, 1978, after less than a month of total service; thus, the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 do not apply because he did not have at least 90 days of service. Moreover, there are no clinical records in the next two decades reflecting complaints referable to the left shoulder. The earliest clinical evidence of any subsequent left shoulder complaint was not until 2008. That long of a lapse of time between the Veteran’s separation from service and the earliest complaint or documentation of now claimed disability is a factor for consideration in deciding this service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Post service, the Veteran was employed in manual labor, including custodial work and tiling floors. Private treatment records dated in March 2008 show the Veteran was seen for left shoulder pain, which “initially started 3 months ago” and apparently was precipitated by lifting. He conceded that he had a congenital problem with this shoulder that had been manageable until recently injuring his back. Now that his back was bothering him, he was finding that he has limited range of motion when trying to use his left arm and shoulder more. After examination the assessment was shoulder pain. The Board finds that, if he had been experiencing shoulder pain continuously since his service (i.e., continuity of symptomatology since service as contemplated by 38 C.F.R. § 3.303(b)), it stands to reason that he would have indicated that when seen in March 2008 rather than contrarily identifying a much later (more recent) onset date of his pain and precipitating factor of a back injury, not mentioning anything owing to his military service as a source or cause. An April 2008 radiology report contains findings that the left shoulder examination demonstrated no significant abnormality, and that bony structures are normal throughout with normal shoulder joint. An April 2008 addendum to that report notes that review of left shoulder imaging demonstrated there was indeed a high positioned scapula, and the scapula and the transverse process of C7 are fused, such that the scapula is fixed to the C7 cervical vertebra. The provider stated that this is a congenital anomaly, and this would account for the inability of the Veteran to raise his left shoulder; otherwise, the left shoulder is normal. A subsequent April 2008 private treatment record contains an assessment of left shoulder pain due to congenital anomaly fusion of transverse process of C7 to high left scapula, with paresthesias of the left upper extremity. A subsequent April 2008 private treatment record contains an assessment of left frozen shoulder and shoulder pain. A May 2008 private record (Dr. A. Perella) reflects that the Veteran had “a several month history of left shoulder pain”. In a May 2008 statement, Dr. B. Kaplan, M.D., noted the Veteran had significant difficulty with pain on lifting the shoulder and was incapacitated by his pain syndrome. Dr. Kaplan concluded that the Veteran’s symptoms were probably more secondary to shoulder impingement syndrome rather than cervical spondylosis. A subsequent May 2008 private treatment record shows the Veteran reported a history of a prior “injury in 1978 to his left shoulder while in the service; this did resolve on its own. No palliative measures undertaken.” The report noted that current X-rays of the left shoulder showed no acute osseous abnormalities and that the Veteran did have a significant spur of acromion. The impression was that the Veteran had left shoulder pain, likely rotator cuff tear. The Board finds that, if the Veteran had experienced chronic left shoulder symptoms since service, it is reasonable to expect that he would have reported this in 2008 rather than stating instead that his injury in service had resolved on its own.   The reports of private X-ray and magnetic resonance arthrograms of the left shoulder show that indications for examination were pain and rotator cuff tear. The concluding impression was that there was evidence of a tendinosis of the supraspinatus tendon without evidence of a tear. August and September 2008 private medical reports of left shoulder examinations concluded, respectively, with impressions of: left shoulder impingement syndrome, early adhesive capsulitis, and left shoulder impingement/adhesive capsulitis. During a December 2009 VA examination, the examiner observed that STRs noted that the Veteran was known to have Sprengel’s deformity. The Veteran reported that, in 1978, he fell while using the monkey bars for his left shoulder and that he since has had pain. He reported current complaints of daily pain associated with stiffness, locking, and weakness. After examination of the left shoulder, the examiner diagnosed left shoulder strain. The examiner opined that it is less likely than not that the Veteran’s current left shoulder strain was caused by or a result of his active duty service. The examiner based this opinion on the rationale that the STRs documented a Sprengel’s deformity, which the examiner noted to be indicative of a congenital malformation. The Board finds that any contention of chronic or recurring pain in the left shoulder since service is not credible given the lack of clinical records in the approximate three decades after the Veteran’s separation from service and the initial indication of symptoms referable to this shoulder so long after service. Moreover, even when he eventually complained about this shoulder, it is significant that he indicated when seen in 2008 that his injury in service and consequent complaint in the aftermath had resolved, and he additionally indicated in his statement in 2008 when recounting relevant history that his 2008 pain had incepted just a few months earlier (so did not date back to his service). See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). See also AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Any medical opinion based on an allegation of continuity of symptoms since service lacks probative value because it is premised on something that has not been credibly shown to have occurred. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based). Private treatment records in the file include a January 2011 report of a follow-up visit for the left shoulder reflecting X-ray findings of spurring of the acromion and an impression of left shoulder impingement. A January 2014 VA examination report, which shows that the claims file was reviewed, reflects that the Veteran reported developing left shoulder pain while trying to do pull-ups on the monkey bars. He reported that his current left shoulder decreased range of motion had persisted for several years. After examination of the left shoulder, the examiner diagnosed a left shoulder Sprengel’s deformity. The examiner explained the condition occurs when the scapula (usually the left) does not descend properly during early fetal development, and that this condition may be associated with pain and physical limitations, as described by the Veteran in relation to the incident during his pull-up attempts in service. The examiner indicated this is a congenital left shoulder condition that is not considered a disease or a defect; rather, it is a failure of scapular descent during early fetal formation. The examiner opined that this condition was likely aggravated by military service for a short period of time (during pull-ups); however, this condition was not likely aggravated beyond its natural course by service. This examiner indicated that the Veteran did not have an injury or other event in service which was significant enough to have worsened or contributed to the pre-existing congenital deformity. A November 2016 VA examination report reflects the opinion of the examiner that the Veteran’s left shoulder Sprengel deformity was not likely permanently aggravated in the approximate one month that he served in the military. The examiner found that the Veteran’s left “frozen shoulder” was consistent with normal aging in his post-service employment as a “tile setter”. A November 2017 VA opinion indicates the Veteran’s Sprengel deformity is at least as likely as not a congenital defect. This finding was based on the examiner’s medical training, a description of the deformity, and how it is treated (e.g., it is usually treated with surgery rather than it changing on its own nature; a congenital defect is more or less stationary in nature). As already explained, in the case of a congenital defect, it necessarily pre-dated the Veteran’s service, but service connection still may be granted for a disability that is superimposed on the congenital defect. The November 2017 examiner found that it is less likely than not that the Veteran’s Sprengel deformity had a superimposed disease or injury on it during service that resulted in a separate disability from the congenital/developmental defect. The examiner’s rationale was based on a review of the STRs and the post-service records. The examiner found that the in-service injury was a muscular strain which resolved. The examiner also found that impingement syndrome is anatomically separate from the scapular that is involved with Sprengel’s deformity. He also indicated that there were no pathological features (such as fractures or vertebral body misalignment) which would identify a superimposed defect due to service. Finally, he concluded that the injury that the Veteran sustained in service as a localized soft tissue process which resolved as expected of a minor ailment and had no effect on the scapular component. In sum, the examiner reviewed the pertinent evidence of record and found that none of the Veteran’s post-service diagnoses were related to his service.   The most probative evidence of record shows the Veteran had a birth defect of his left shoulder, that he served just approximately one week in the military before having left shoulder complaints, and that, shortly thereafter, he was discharged from service. After service, he did not have complaints referable to this shoulder for more than two decades, and even once he eventually did it was only after an intervening (“intercurrent”) worker’s compensation back injury and/or employment tiling floors. His post-service disabilities are not causally related to, and have not been aggravated by, his service. Moreover, they are not a progression of his congenital deformity. The January 2014 VA examination report indicates the Veteran’s congenital deformity is neither a disease nor defect, whereas the November 2017 examiner found that it at least as likely as not is a congenital defect – partly evidenced by the way it has been treated. In adjudicating this claim for the Veteran’s current left shoulder disability, in considering VA’s “Veteran-friendly” nature, the Board has considered his congenital deformity as a disease and as a defect if it would be more beneficial to him to have his deformity classified as one over the other. In other words, there is no prejudice to him in how his congenital deformity is characterized because service connection is not warranted under either scenario. The 2014 and 2016 opinions conclude it was not aggravated by his service (so if classified as a disease), and the 2017 examiner found that there is not a superimposed disability due to, or aggravated by, service (so if instead considered a defect). Finally, the Board points out that the Veteran has not been shown to have the requisite experience, training, or education needed to give a probative opinion concerning the origins of this claimed disability – either in terms of whether his service caused or aggravated it and whether it is a disease or defect. These determinations are beyond his lay competence. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   For the reasons and bases discussed, the preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable, and this claim consequently must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.