Citation Nr: 20006971 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-18 622 DATE: January 28, 2020 ORDER Entitlement to service connection for left shoulder/arm disorder is denied. Entitlement to service connection for right (dominant) shoulder/arm disorder is denied. FINDINGS OF FACT 1. A left shoulder/arm disorder is not related to service. 2. A right shoulder/arm disorder is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder/arm disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). 2. The criteria for entitlement to service connection for a right shoulder/arm disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from February 1971 to March 1992. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2018, the Board remanded these issues for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also granted service connection for diabetes mellitus, an issue on appeal at that time. The Board’s decision with respect to that claim is final. See 38 C.F.R. § 20.1100 (2018). Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Arthritis is among the presumptive chronic diseases. Arthritis is primarily rated on the basis of limitation of motion. Therefore, the rating provisions addressing limitation of motion of specific joints must be considered in determining whether arthritis is manifest to a degree of 10 percent or more. Alternatively, in the case of degenerative arthritis (hypertrophic or osteo-arthritis) or arthritis due to trauma, there must be painful motion accompanied by X-ray evidence of arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2018). In order for shoulder arthritis to have become manifest to a degree of 10 percent on the basis of limited motion, (1) there must be evidence to substantiate that abduction or flexion are limited at least to shoulder level, or (2) there must be a diagnosis of arthritis “established by X-ray findings” and “satisfactory evidence of painful motion.” See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201 (2018). Where one of the enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating “(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).] Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a left shoulder/arm disorder. Entitlement to service connection for a right shoulder/arm disorder. The Veteran entered active duty service on February 22, 1971. Service treatment records include an October 29, 1985, Clinical Note, which reveals complaint of intermittent bilateral shoulder and upper arm pain for one month. The Veteran complained that pain was worse in the left shoulder. There was no history of trauma. Range of motion was “ok” (Record 06/19/2015 at 79). A November 12, 1985, follow up visit reveals a two-month history of left arm pain. The symptoms started with a general achiness and progressed to a persistent left mid-upper arm ache, which was worse with lifting or lying on the left side. Range of motion was full; strength was normal; there was no tenderness; there was no crepitus. A diagnosis of soft tissue injury to the left shoulder was rendered (Record 06/19/2015 at 80). The Veteran continued with treatment through November and December of 1985 noting temporary relief of symptoms with medication, but persistent symptoms. Range of motion was generally normal, but resisted abduction increased pain slightly. No diagnosis was rendered (Record 06/19/2015 at 74). A November 27, 1989, Clinical Note reveals complaint of weakness of the right deltoid for the past 18 months. Needle EMG testing showed no abnormality, but the right arm was slightly reduced compared with the left. The examiner concluded there was not enough information to render a diagnosis (Record 06/19/2015 at 43). A December 15, 1989, Clinical Note reveals a diagnosis of right deltoid bursitis. The Veteran received injections of medication. He was given exercises to do for shoulder range of motion (Record 06/19/2015 at 47). A report of medical examination performed on January 30, 1992, at service separation, reveals normal findings for the upper extremities (Record 06/19/2015 at 31). A report of medical history completed by the Veteran on January 30, 1992, reveals that the Veteran initially marked that he had a history of shoulder pain, but then crossed out the mark and answered no (Record 06/19/2015 at 33). The Veteran was separated from active duty on March 31, 1992. He filed his initial service connection claim, which is the claim currently on appeal, in December 2009. Post-service medical records indicate that the Veteran complained of right shoulder tingling for the past couple months on June 3, 2005. Symptoms occurred when the shoulder was in certain positions. The diagnosis was bursitis (Record 12/31/2009 at 23). The report of VA examination in April 2010 reveals a diagnosis of right and left shoulder strain in service. The Veteran stated that these problems have not bothered him in a while. He had not been treated for these conditions since the 1980’s. Range of motion of both shoulders was pain free and normal for the individual. X-rays revealed bilateral A/C joint arthritis. The examiner opined that the in-service strains had resolved with no residual functional limitation (Record 04/28/2010). The report of VA examination in July 2018 reveals a diagnosis of bilateral A/C joint arthritis (Record 07/05/2018). The examiner opined that the condition claimed was less likely than (less than 50 percent probability) related to service. The rationale was that the Veteran had a right shoulder strain in the early 1980’s, but it resolved shortly afterwards. He did not have any problems with the shoulder again until 5-6 years ago. He owned a commercial cleaning company for 20+ years in Florida, which actually most likely caused significant wear and tear on the shoulders in more recent years. The examiner attributed the Veteran’s bilateral A/C joint arthritis to his work in the cleaning service industry post military (Record 07/05/2018). The July 2018 VA examiner was asked to clarify the opinion regarding the identity of the shoulder being addressed. In May 2019, the examiner clarified that the Veteran has bilateral shoulder arthritis. He had a right shoulder strain in the early 1980’s that resolved shortly afterwards. There was no chronicity with this shoulder until many years later (around 2010 or so). At this time, the Veteran had already owned/operated a commercial cleaning company for about 20 years in Florida, which caused significant wear and tear and the resultant arthritis in both shoulders. He was diagnosed with the bilateral shoulder arthritis in both in 2010. Therefore, the Veteran’s bilateral (to include left) shoulder arthritis is less likely than not due to military service and is most likely due to his post military service occupation (Record 05/17/2019). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a bilateral or unilateral shoulder/arm disorder have not been met. The Veteran apparently sustained injury to the left and right arm during his service. The evidence substantiates a soft tissue injury to the left shoulder in November 1985 and treatment for right deltoid symptoms in November 1989 with no diagnosis rendered. The evidence also substantiates a current bilateral shoulder disorder, diagnosed as arthritis. Accordingly, two of the three elements necessary to establish service connection have been substantiated. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Saunders, 886 F.3d 1356 (2018) (a veteran seeking compensation under 38 C.F.R. § 3.303(a) must establish three elements). However, a preponderance of the evidence is against a relationship between any injury in service, or any other event in service, and the current bilateral or unilateral shoulder/arm disorders. With reference to presumptive service connection criteria above, the Board finds that there was not manifestation of arthritis to a degree of 10 percent or more within one year of service separation. In other words, the evidence does not substantiate that abduction or flexion of either shoulder was limited at least to shoulder level; or that there was a diagnosis of arthritis established by X-ray findings and satisfactory evidence of painful motion. For reasons next discussed, the Board also finds that there was not a notation of arthritis in service and continuity of symptomatology after service. There is no reference to shoulder arthritis in the service treatment records. Moreover, the normal clinical examination of the upper extremities at service separation is probative and persuasive evidence against the incurrence of the current bilateral shoulder arthritis in service. To the extent the Veteran had shoulder symptomatology in service, there was no shoulder disorder present at service separation. It is further bolstered by normal examination findings in April 2010, and by the Veteran’s statement to that examiner that these problems had not bothered him in a while, and that he had not been treated for such complaints since the 1980’s. It is again supported by the opinion of the VA examiner in July 2018 and May 2019, which argue against a relationship between either currently diagnosed shoulder disorder and an injury or disease in service. The Board finds that the examiner’s rationale is consistent with the evidence. There is no medical opinion that purports to relate the current disorder of the shoulders/arms to service. The Board has considered the Veteran’s lay statements regarding etiology. However, relating current arthritis, or other shoulder disorder, to temporally remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Given the normal findings at service separation, and the Veteran’s statements in April 2010, there is an apparent gap in his symptomatology. Therefore, such an opinion would require specialized medical knowledge and could not be based solely on lay observation. Accordingly, the Veteran’s lay statements alone are not competent evidence of an etiologic relationship between the claimed shoulder disorders and service. In sum, the Board finds that the claimed bilateral or unilateral shoulder/arm disorders are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed bilateral or unilateral shoulder/arm disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.