Citation Nr: 20006979 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-19 643 DATE: January 28, 2020 ORDER Entitlement to service connection for a left shoulder condition is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s left shoulder condition was caused by or incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder condition have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1948 to July 1968. This case comes on appeal of a July 2013 rating decision. The Veteran testified before the Board at an April 2018 hearing. The Board notes this issue has been before the Board on multiple occasions. Most recently, in May 2019, the Board remanded the issue for additional development. 1. Entitlement to service connection for a left shoulder condition Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran contends that he has a current left shoulder disability that was caused by injuries he incurred during active duty service. The record demonstrates that the Veteran has had several post-service left shoulder diagnoses, to include rotator cuff tendonitis, rotator cuff tear, and, in 2017, left shoulder joint replacement. At issue is whether these conditions were caused by or incurred in service. The Veteran has identified specific in-service injuries that he believes led to his current left shoulder disability. Those injuries include an incident incurred while playing softball, as well as an incident in which the Veteran fell off a telephone pole while doing electrical work. The exact timing of the Veteran’s claimed injuries is not completely clear based on the Veteran’s testimony. In an August 2014 statement, the Veteran alleged that both the softball injury and the fall occurred in 1950. In an October 2018 VA examination, the Veteran stated that the telephone pole fall occurred in 1949, but that he did not recall injuring the left shoulder while playing softball. The Veteran’s spouse also testified in April 2018 that the Veteran had experienced shoulder pain for the entirety of the approximately 40 years she had known him. Service treatment records do not offer much information. Notably, an examination in April 1955 included no indication of left shoulder problems. On the Veteran’s January 1968 retirement examination, there was a notation of mild pain in the left shoulder since November 1967, but that the Veteran had not required medical attention, x-rays were within normal limits, and the pain was not considered significant. Post-service treatment records document ongoing shoulder issues as discussed above, however these records do not begin until September 2001. In October 2018, the Veteran underwent a VA examination for his left shoulder. The examiner opined that the Veteran’s current left shoulder disability was not causally related to service, however the examiner improperly relied on the questionably-documented timing of injuries discussed in private treatment records and failed to adequately consider the Veteran’s competent lay statements. Accordingly, the examination was not adequate and the Board remanded the claim to obtain a new examination. In July 2019, the Veteran underwent a new VA examination. At that time, the examiner documented diagnoses of left shoulder joint replacement and acromioclavicular joint osteoarthritis in the left shoulder. The examiner acknowledged the Veteran’s claims regarding in-service injuries and noted both his service and post-service treatment records. The examiner then opined that the Veteran’s current, diagnosed left shoulder condition was less likely than not caused by or incurred in service, to include the claimed in-service events. By way of rationale, the examiner explained that although there was documentation on the Veteran’s retirement examination of left shoulder pain, this examination stated that the condition was mild and that x-rays were negative. The examiner then noted that there was no objective evidence of continuity after active duty service and that the Veteran’s current shoulder condition was more likely a result of degeneration from chronic use over time, given that the first objective documentation occurred 33 years after service. Even considering the Veteran’s spouse’s contention that the Veteran had shoulder pain for the entirety of their relationship, this would place the onset at least 10 years after service. Moreover, the examiner pointed out that at the time of the first objective documentation in 2001, x-rays showed only mild degenerative joint disease. Per the examiner, if the condition had been ongoing since service, it would have been expected that there was a more severe abnormality by 2001. The examiner also noted that if the Veteran had experienced an in-service injury so severe as to cause his current injuries, it would be expected that such an incident would have been documented in service treatment records. Additionally, the examiner identified a November 2010 comment from the Veteran’s private physician that the Veteran’s left shoulder condition was not unusual for someone the Veteran’s age. Based on all of this evidence, the examiner concluded that any in-service pain, as noted on the January 1968 retirement examination, was likely to have completely resolved and was not causally related to the Veteran’s current disability. The July 2019 VA examiner’s opinion was supported by complete and thorough rationale. The examiner also considered and responded to the Veteran’s contentions and explained how the conclusions reached reconciled with the Veteran’s service treatment records. The Board therefore considers this opinion to be highly probative and persuasive. Notably, aside from the Veteran’s contentions, there is no other evidence in favor of a finding that the Veteran’s current left shoulder disability was caused by service. Although the Veteran, as a layperson, is competent to identify his experienced injuries and symptoms, he is not competent to provide an etiological connection between his current disability and in-service injuries, as that requires medical expertise. While the Veteran is competent to report longstanding shoulder problems, the Board affords the medical opinion evidence of record greater probative weight in this case, as the examiner provided cogent medical rationale, citing to the severity level of the shoulder disability when assessed years ago and today, in support of a finding that medically, the current disabilities would not be related to his in-service injuries. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s current left shoulder disability was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.