Citation Nr: 20006599 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 14-07 234A DATE: January 28, 2020 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT A chronic disability of the right shoulder was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran’s current right shoulder disability was not incurred in or caused by service. CONCLUSION OF LAW The criteria to establish service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Veteran testified at a hearing before a Decision Review Officer. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of both hearings is of record. The case was previously before the Board in February 2018, when the claim for service connection for a right shoulder disability was reopened and remanded for additional development. Although additional VA treatment records were associated with the claim after the Veteran’s claim was certified to the Board, a review of those records reveals the evidence is cumulative or not relevant to the claimed right shoulder disability. Thus, a waiver or remand for RO consideration of that evidence in the first instance is not necessary. See 38 C.F.R. § 20.1304(c). 1. Entitlement to service connection for a right shoulder disability The Veteran seeks service connection for a right shoulder disability, which he asserts was incurred during service. During his August 2013 and May 2017 hearings, the Veteran asserted, in essence, that he injured his right shoulder during a motorcycle accident during service when his motorcycle flipped, causing him to land on his shoulders; and that he was treated at the dispensary, where he was given aspirin and an arm sling and sent home. He attributed his current shoulder condition to the military letting it heal naturally, rather than repairing it. He also asserted that his shoulder bothered him for a number of years thereafter, but he worked through the pain, did not pay attention to it, and did not receive any additional treatment for the shoulder during service. He testified that he found out he had a right shoulder condition in 1990 or 1991 during physical therapy for a left shoulder condition when he was told his right arm was “not going all the way around.” He further stated that in 2013 a VA clinician told him his rotator cuff was “torn to pieces” during service. After reviewing the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s current right shoulder disability began during service or within one year after discharge or is otherwise related to service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of active service during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an initial matter, the Veteran has a current right shoulder disability, diagnosed as right shoulder rotator cuff tear, degenerative arthritis of the acromioclavicular (AC) joint, impingement syndrome and subacromial bursitis, as noted in VA examination reports and VA treatment records. See January 2013, October 2018 and June 2019 VA examination reports and October 2013 VA treatment record. Thus, the question for the Board is whether his current right shoulder disability was incurred in or is otherwise related to service. On this question, the Board finds the probative evidence is against finding that the Veteran’s current right shoulder disability began during service or within one year of his August 1969 discharge from active service or is otherwise related to service. Service treatment records shows a complaint of right shoulder pain in December 1965 for one week and impression of a strain. A January 1966 treatment record indicated a right shoulder AC separation treated with aspirin for pain, no duty for that day and light duty for 5 days. A January 1967) treatment record (which the Board notes may be the same incident and incorrectly dated) notes that a right shoulder x-ray was negative for right shoulder fracture or dislocation. Thereafter, service treatment records do not suggest any complaints or treatment related to the right shoulder. Notably, a December 1966 naval hospital admission physical for an appendectomy indicated a normal physical examination except for abdominal pain. Further, the Veteran’s August 1969 separation examination indicated normal findings with no notation of a right shoulder condition or related complaints. Following service, the record does not show reported symptoms, complaints or treatment for a right shoulder condition until three decades after service. The first medical evidence documenting right shoulder pain is a February 1991 VA examination for a left shoulder condition, in which the Veteran complained of right shoulder pain when he raised his right shoulder. The examiner noted a finding of limited motion of the right shoulder with external rotation only and normal muscle strength and that a February 1991 x-ray was normal. Thereafter, the post-service medical evidence documents an April 2006 complaint of right shoulder pain that began 6 to 8 months prior; the examiner noted pain on palpation and an impression of shoulder pain and shoulder subluxation. Subsequent VA treatment records note a computerized problem list of shoulder joint pain but do not reflect treatment for right shoulder pain until 2013. In this regard, a June 2013 VA treatment record notes the Veteran sought treatment following a reported fall on the sidewalk, in which he landed on his right shoulder area. Subsequent VA treatment records note ongoing treatment for a right shoulder condition from June 2013 to the present, including right shoulder rotator cuff surgeries in 2014 and 2017. As degenerative arthritis was not shown in service or within one year following the August 1969 discharge, competent evidence linking the Veteran’s current right shoulder condition to service is needed to establish service connection. On this question, the preponderance of evidence is against the claim. Post-service medical records do not suggest an association or link between the current right shoulder condition and service; and no such medical nexus is otherwise of record. Additionally, the VA examiners concluded there was no link between the current right shoulder disability and service. On VA examination in January 2013, the VA examiner noted a 2004 diagnosis of bilateral shoulder osteoarthritis and history of AC separation in 1966. The examiner opined that the Veteran’s current right shoulder disability was not incurred in or otherwise related to service. He reasoned that the right shoulder AC separation noted in the Veteran’s service treatment records healed without sequelae, noting that the Veteran does not currently have trouble with the right shoulder or AC joint. On examination, the examiner noted normal flexion and abduction of the right shoulder, without painful motion, including with repetition, and noted normal muscle strength and no ankylosis or other findings. On VA examination in October 2018, the VA examiner diagnosed right rotator cuff tear, with an onset of 2013. The VA examiner opined that the Veteran’s current right shoulder rotator cuff tear was less likely than not incurred in or caused by the claimed in-service motorcycle accident during service. Addressing the service treatment records documenting complaints and treatment for the right shoulder, the examiner concluded that the Veteran did not have a chronic right shoulder disability or treatment in service, reasoning that the conditions noted during service were acute and self-limited. In support, he noted that a January 1967 x-ray of the right shoulder was negative for fracture and dislocation and there was no objective evidence of AC joint separation. He further concluded that the medical evidence does not show continuation of care following the Veteran’s August 1969 discharge, noting that, per history from the Veteran, his right shoulder began to bother him in 2013 after a fall, when he was diagnosed with right shoulder impingement syndrome, partial rotator cuff tear and subacromial bursitis and that he subsequently underwent 2014 and 2017 arthroscopic surgeries. He opined that the current right shoulder conditions are de novo conditions, compared to the acute right shoulder condition in service, and concluded there was no evidence of linkage or nexus between the current right shoulder condition and service. On VA examination in June 2019, the VA examiner similarly opined that it was less likely than not that the current right shoulder condition was incurred in or caused by service. He reasoned that, while the Veteran incurred a right shoulder injury during service, the injury resolved without residual or sequelae, as documented in the service treatment records and is typical of the natural history of such injuries. He also noted that the Veteran sustained additional injury to the right shoulder around 2013, following a fall, and as such, is separate and unrelated to the 1965 injury. He concluded that a direct nexus was not reasonably demonstrated. The Board finds the combined January 2013, October 2018 and June 2019 VA examiners’ opinions highly probative and entitled to great weight. Taken together, the conclusions were based on examination of the Veteran and his reported medical history and thorough review of the claims file, including the Veteran’s service and post-service medical records, and are supported by an articulated rationale that is consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Thus, the combined opinions are probative and persuasive. There is no medical opinion to the contrary. To the extent the Veteran has asserted symptoms of right shoulder pain during and since service, the Board finds the medical evidence does not substantiate those assertions, as the record reflects that the Veteran did not complain of right shoulder symptoms several months after the motorcycle injury during a December 1966 pre-surgery examination for an appendectomy, or at the time of his August 1969 discharge examination, and the Veteran testified that he did not seek additional treatment during service. The record does not reflect complaints or treatment for the right shoulder until three decades after service; the Veteran testified he did not know he had a right shoulder condition until 1991 during VA examination for the left shoulder. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiant’s observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran’s lay evidence). Further, although the Veteran asserted a VA clinician told him his right shoulder was torn to pieces during service, there is no evidence in the record to support that contention. The Board finds the opinions of the VA examiners more probative than the lay statements, as to whether the current right shoulder condition is the same condition as that noted in service. While the Veteran believes that his right shoulder disability is related to service, as a lay person, he has not been shown to have the specialized training sufficient to render such an opinion. The diagnosis and etiology of a right shoulder disability are matters that require medical expertise to determine and cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007) (noting general competence of a lay person to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran’s opinion as to the diagnosis and etiology of his current right shoulder disability is not competent medical evidence. The Board finds the VA examiner’s opinions, service treatment records and post-service medical evidence to be significantly more probative than the Veteran’s assertions. In summary, the preponderance of competent and probative evidence is against finding that the Veteran’s current right shoulder disability is related to service, and the claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.