Citation Nr: 20042353 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 17-60 931 DATE: June 23, 2020 ORDER Entitlement to service connection for a left shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the appellant’s left shoulder disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had active duty for training (ACDUTRA) from July 1989 to October 1989 with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from the January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2019, the appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In his November 2017 substantive appeal, the appellant discussed the issue of entitlement to service connection for hearing loss. However, the record shows that the appellant did not submit a timely notice of disagreement as to a December 2015 rating decision that denied that issue. That issue is not on appeal before the Board at this time. However, the RO should invite the Appellant to file a petition to reopen that previously denied claim and provide the appropriate application form. Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military service includes active duty, any period of active duty for training (“ACDUTRA”) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (“INACDUTRA”) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Analysis The Appellant seeks entitlement to service connection for a left shoulder disability, which he contends began during his period of ACDUTRA as a result of performing training exercises and carrying a ruck sack. He has submitted private treatment records dated in 2004 and 2005 that show he had an insidious onset of left shoulder pain around the beginning of May 2004 and underwent a left shoulder arthroscopy with repair of superior labrum anterior and posterior (SLAP) tear in January 2005. They also reference an acromioclaviculare (AC) joint separation the Appellant reportedly had in high school and shows that he reinjured his shoulder while lifting weights in October 2005. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Appellant’s left shoulder disability preexisted his ACDUTRA from July 1989 to October 1989, and from July 1988 to July 1994 for his service in the National Guard. As referred to above, the Appellant reported an AC joint separation he had in high school. The Appellant’s July 1988 entrance examination lacks any notations of left shoulder defects, infirmities, or disorders. However, the most competent and credible evidence of record shows that a left shoulder disability did not manifest during the Appellant’s period of ACDUTRA from July 1989 to October 1989. He confirmed in his April 2019 medical examination that he never sought medical treatment while serving in the military. Therefore, the presumption of soundness does not attach. See Gilbert, 26 Vet. App. 48, 52 (2012). Instead, the Board will adjudicate the appeal as one for direct service connection. The Appellant began obtaining treatment for his left shoulder injury nearly ten years after he separated from service. In May 2004, he sought treatment for left shoulder pain, and he underwent a left shoulder arthroscopy with repair of SLAP tear in January 2005. In September 2008, he had a second left shoulder surgery and underwent diagnostic arthroscopy, arthroscopic repair of glenoid labrum with bio-suturetaks times two with Duncan loops and stacked knots. Throughout the years, the Appellant has received extensive, ongoing treatment for his left shoulder injury. In April 2019, the Appellant obtained a medical opinion from Dr. Shick that stated, Certainly, shoulder instability in a young infantryman is a common problem. His operative findings with the Dr. Learning indicated chronic subluxation of the glenohumeral joint. It is medically likely that his time in the military with the heavy demands on his left shoulder was the inciting factor in his left shoulder subluxation. He had no problems in high school prior to enlisting in the military despite playing multiple sports. The Board finds that the April 2019 opinion is not probative because it is vague and does not reflect consideration of the medical treatment records relating to the Appellant’s first left shoulder surgery, which describe the onset of left shoulder symptoms as insidious and do not reference the full complexity of the Appellant’s medical history, to include the circumstances of his ACDUTRA service. Therefore, the Board assigns the April 2019 medical opinion no probative weight. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). In March 2020, the Appellant underwent a VA examination. The examiner concluded that the Appellant’s left rotator cuff tendonitis, left shoulder SLAP repair, and left shoulder degenerative arthritis, were less likely than not incurred in or caused by the events or injuries during service. The examiner also concluded that the Appellant’s left shoulder conditions were less likely than not incurred in or caused by the in-service injury, event, or disease, including performing training exercises and carrying a ruck sack. The examiner’s written opinion demonstrates that he thoroughly reviewed the Appellant’s record and provided a sufficient explanation as to why the Appellant’s shoulder injury is not related to service. Specifically, he was unable to find any evidence the Appellant made any complaints or sought treatment for his left shoulder disability during service. The Board acknowledges the Appellant’s contentions that his left shoulder disability began during basic training, at Ft. Benning and he had pain in his shoulder throughout service. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Appellant has a current diagnosis of arthritis as evidenced by a December 2004, MRI. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Private treatment records show the Appellant was not diagnosed with arthritis until December 2004, years after his separation from service, and years outside of the applicable presumptive period. While the Appellant is competent to report experiencing symptoms of left shoulder pain during service and consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Appellant’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing shoulder problems from July 1989 to May 1994 and initially reported the onset of left shoulder pain as of May 2004, which is outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Appellant asserts that the reported symptoms are manifestations of arthritis, he is not competent to determine that these symptoms were manifestations of arthritis as the Appellant has not demonstrated the necessary medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record does not provide competent, credible evidence of ongoing, persistent, or continuous complaints or symptoms of a left shoulder disability, as required under 38 C.F.R. § 3.303. As discussed above, the Appellant has provided inconsistent statements, and thus these statements are given no probative weight. The Board weighed the medical evaluations, private treatments records, and the Appellant’s testimony and found the most probative evidence is the VA examination, due to its thoroughness, in the evaluation process, and the consideration of the Appellant’s medical history. Thus, service connection may not be presumed here based on continuity of symptomatology under 38 C.F.R. § 3.303. Service connection for a left shoulder disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Appellant’s left shoulder disability and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here, the Appellant is unable to demonstrate that there is direct service connection because there is no nexus between his left shoulder disability and service. The Board acknowledges the Appellant is competent to report experiencing symptoms of left shoulder pain during service, but not the etiology of his arthritis by his own observations. The Board considered the Appellant’s lay testimony and did not find his statements to be credible because there are numerous notations in his service treatment records (STRs), that indicated that he reported his health was good, and he was not taking any medication. Specifically, he reported that he did not have a “painful or trick shoulder or elbow. See January 1992, May 1994 service treatment records. Thus, the Appellant’s statements are entitled to no probative weight. The Board also weighed the two medical opinions and private treatment records and found the VA opinion to be more persuasive, because the private opinion was vague and speculative. The private opinion also relied heavily on the Appellant’s testimony and considered the plausibility of the injury based on the Appellant’s duties versus his medical history. Specifically, the private examiner noted that the type of injury the Appellant suffered from was common for infantryman, but did not discuss the fact that the Appellant did not begin to receive treatment until approximately 10 years after service, did not reflect that he considered the medical treatment records that describe the onset of the left shoulder symptoms as insidious, or that the Appellant further injured himself while weightlifting. See October 2005 private treatment records. In contrast, the VA examination was more thorough, by incorporating the Appellant’s assertions within the report, considering his medical history, and providing extensive testing and evaluations of the Appellant’s condition. In summary, service connection is unwarranted on a direct basis. Based on the above, the Board finds that the preponderance of the evidence of record in this case is against finding that the Appellant’s claimed left shoulder disability was incurred in, aggravated by, or otherwise the result of active service. Therefore, the Appellant’s claim of entitlement to service connection for a left shoulder disability must be denied. See 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. Finally, neither the Appellant nor his representative has raised any issues with the duty to notify or duty to assist regarding the claim denied above. 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 a duty to assist argument). (Continued on the next page)   The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence weighs against the claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.