Citation Nr: 20042345 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 16-59 068 DATE: June 23, 2020 ORDER Service connection for residuals of a cancerous right shoulder tumor is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s residuals of a cancerous right shoulder tumor were not present in service or until many years thereafter. CONCLUSION OF LAW The criteria for service connection for residuals of a cancerous right shoulder tumor have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1977 to July 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2017. This case was remanded previously by the Board in a February 2019 decision for further development. Service connection for residuals of a cancerous right shoulder tumor Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including cancerous tumors, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to a “chronic” diseases listed under 38 C.F.R. § 3.309 (a), such as cancerous tumors. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran contends that his right shoulder tumor, diagnosed as a supraclavicular liposarcoma, was caused by the impact to the right shoulder area from the discharge of weapons, specifically the recoil from M60 and M16 weapons that he fired while in service. See September 2017 Board Hearing Transcript. In his MOS as an 11 Bravo and Machine Gunner, the Veteran claimed he endured chronic stress and pain from the constant firing of ammunition of machine guns, and the kickback from these weapons would hit his right shoulder. Id. Due to the surgery and residual effects of the shoulder tumor he was diagnosed with, the Veteran reported he has pain, limited range of motion in the shoulder, a scar, and some pinching when he lays on the shoulder; he also lost his collarbone through surgery, and weight-bearing can result in his arm snapping or shoulder popping out. Id. The Veteran’s private medical records indicate that Veteran developed what he thought was arthritis pain in his right shoulder in March 2014, by April 2014 he felt a lump, in May 2014 he was unable to lift his arm, and underwent an MRI in June showing a large right supraclavicular mass. See Private Medical Records. A June 2014 biopsy confirmed high grade liposarcoma, and Veteran began preoperative radiation therapy immediately, which was completed in August 2014. The medical records indicated Veteran believed the tumor was caused by carrying the machine gun artillery in service and excessive kick back that occurs with firing. Following the Board’s remand in the February 2019 decision for a VA examination to address Veteran’s contentions of limited strength in his arm and shoulder, a scar, nerve and tissue damage, the Veteran was afforded the VA examinations for his right shoulder tumor in December 2019. See December 2019 C&P Exams. Upon examination, the Veteran was diagnosed with malignant right shoulder liposarcoma with clavicle resection, currently in remission. The Veteran was not seen to have any other residual conditions or complications due to the neoplasm or its treatment. He was shown to exhibit loss of power and weakness in his right side, with some impairment of muscle tonus and substance, and decreased range of motion affects use of the upper extremity. He also has an AC joint condition that impairs his right side due to the clavicle resection. The VA examiner opined that the residuals of the right shoulder tumor were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner’s rationale was that, upon review of the Veteran’s service treatment records, his entrance exams were silent for any pre-existing condition, and there is no documentation of any complaints of or symptoms suggestive of a right shoulder mass. The examiner stated Veteran left service in 1980 and was diagnosed with the right shoulder liposarcoma in 2014, which is many years after service. The examiner stated that liposarcoma can be slow growing tumors but there was no evidence in the STRs and medical records that provided a reasonable connection to service temporally, and the examiner found it difficult to connect the diagnosis to service, and hence opined for a negative nexus opinion. See December 2019 C&P Exams. Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for residuals of a cancerous right shoulder tumor. In this regard, there is no evidence of a right shoulder injury or appearance of a mass in service and no treatment for a right shoulder tumor until many years after separation. Moreover, there is no evidence of a nexus between an in-service injury or disease and the current residuals of the diagnosed right shoulder liposarcoma. There is also no evidence of record to suggest that the Veteran had manifested a cancerous tumor within one year of separation from service. The Board finds probative the December 2019 opinion of the VA examiner as it was definitive, based upon a complete review of the Veteran’s entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. The Board recognizes the Veteran’s contentions that his right shoulder tumor was incurred as a result of active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran’s service treatment records contain no competent medical evidence of right shoulder injuries, post-service treatment records show no complaints, symptoms, findings or diagnoses associated with a right shoulder tumor until 2014, and no competent medical evidence links the cancerous right shoulder tumor to the Veteran’s service. Additionally, the Veteran is not competent to ascertain the etiology of his right shoulder liposarcoma or determine that any right shoulder symptoms were manifestations of the right shoulder liposarcoma. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, while the Board is sympathetic to the Veteran’s right shoulder liposarcoma and corresponding residuals, it finds that the preponderance of the evidence is against the claim and service connection for residuals of a cancerous right shoulder tumor must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.