Citation Nr: 20004633 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-09 284 DATE: January 21, 2020 ORDER Service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with right shoulder strain and instability. 2. The currently diagnosed right shoulder disorder did not have its onset during service and is not otherwise etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from August 1999 to December 2003. This matter first came before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Regional Office (RO) in Pittsburgh, PA. In October 2018, the Board in relevant part denied service connection for a right shoulder disability. In May 2019 the United States Court of Appeals for Veterans Claims (CAVC) issued a Joint Motion for Partial Remand (JMPR), vacating and remanding to the Board that part of the October 2018 Board Decision that denied service connection for a right shoulder disability, agreeing that the Board did not address a theory of entitlement. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duties to notify and assist have been met in this case. Neither the Veteran nor the representative raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the issue on appeal. Service Connection for Right Shoulder Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. The Veteran contends that the right shoulder disorder was directly caused by service because he started feeling that the right shoulder might pop out after carrying a heavy pack, but does not recall a specific injury during service. See January 2016 VA Examination. After a review of all the evidence, lay and medical, the Board finds that the Veteran has a current disability of right shoulder strain and instability. See September 2011 Private Examination. The weight of the evidence shows that the current right shoulder disorder did not have its onset during active service and is not otherwise etiologically related to active service. The Veteran did not sustain an injury, disease, or event involving the right shoulder during service, and continuously denied relevant symptoms of a right shoulder disorder throughout service. As the service treatment records are complete and show complaints and treatment for other disorders, the Veteran similarly would have reported or complained of right shoulder symptoms, had such occurred during service. The Veteran presented for treatment of other conditions during service including for a left arm edema, a growth on the heel, and mild headaches, among others. In consideration of the other evidence included in the service treatment records showing complaints and treatment for various disorders, it is likely that any history of injury, complaints, symptoms, or treatment for a right shoulder disorder would similarly have been mentioned and/or detected during service, that is, a right shoulder disorder would have been recorded in the service treatment records had such injury or symptoms occurred during service; as a result, the absence of any in-service complaint, finding, or reference to treatment for a right shoulder disorder or related symptoms weighs against finding an in-service a right shoulder injury or disease during service. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Cf. AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported). Given these facts, as well as the absence of any in-service complaint, finding, or reference to treatment for a right shoulder disorder or related symptoms, the Board finds that the Veteran’s recently reported history of an in-service right shoulder disorder mentioned in the January 2016 VA Examination and the September 2011 Private Examination, made pursuant to this claim for compensation is inconsistent with and outweighed by the other lay and medical evidence of record, and is not credible. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (recognizing that a lengthy period of absence of medical complaints for condition can be considered as one factor in resolving claim); Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upholding Board denial of service connection and finding that a veteran’s recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event). For these reasons, based on the multiple factors stated in this decision, the Board finds that there was no in-service right shoulder injury, disease, or event, and there were no in-service right shoulder symptoms reported by the Veteran. The January 2016 VA Examination concluded that there is no evidence of a right shoulder injury while on active duty because symptoms started to develop after service; therefore, the current shoulder condition most likely is related to the post-service job injury sustained by the Veteran in 2011 while trying to restrain a prisoner at work rather than an injury sustained during service. The VA examiner further opined that there is evidence of a normal MRI arthrogram in November 2010 that tends to prove that the current right shoulder injury occurred in 2011 while restraining a prisoner at work. The Veteran’s statements attributing current right shoulder disorder to service, to include stress from carrying a heavy pack, are outweighed by the lay and medical evidence of record showing no right shoulder symptoms at, and immediately after, service separation, a post-service shoulder injury, and medical opinion that there was no etiological relationship between the current right shoulder disorder and in-service stress from carrying a heavy pack. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the current right shoulder disorder was not incurred in or otherwise caused by active service. As the preponderance of the evidence is against the claim for service connection for a right shoulder disorder, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Wasung, 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.