Citation Nr: 21000577 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 10-16 106 DATE: January 5, 2021 ORDER The claim of entitlement to service connection for left shoulder disability, diagnosed as mild degenerative changes, is denied. FINDING OF FACT 1. A left shoulder condition pre-existed the Veteran’s period of active duty service, as noted on his May 1966 entrance examination, and competent, probative evidence indicates that such condition did not undergo an increase in severity during active duty service, and weighs against a finding that it was otherwise aggravated during or as a result of service. 2. The Veteran’s current left shoulder disability, mild degenerative changes, was first diagnosed many years post service in 2019, and the only competent, probative opinion evidence to address whether there exists a medical relationship between such current left shoulder disability and the Veteran’s service, to include injury associated with an in-service automobile accident, weighs against the claim. CONCLUSION OF LAW The criteria for service connection for left shoulder disability, diagnosed as mild degenerative changes, are not 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 Veteran served on active duty in the United States Air Force from May 1966 to March 1970. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2009 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied the Veteran’s claims for service connection for a left shoulder disability. The Veteran filed a notice of disagreement (NOD) in July 2009. A statement of the case (SOC) was issued in March 2010 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in April 2010. In March 2012, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In March 2013, December 2014, May 2016, May 2017, and November 2018, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for additional development. After accomplishing further action on each occasion, the AOJ continued to deny the claim (as reflected in supplemental SOCs (SSOCs) dated in August 2013, April 2015, November 2016, April 2018, and July 2020, respectively), and returned this matter to the Board for further appellate consideration. The Board is now satisfied that all notification and development actions needed to fairly adjudicate the service connection claim on appeal have been accomplished, and will proceed with a decision on the claim. Service Connection for Left Shoulder Disability The Veteran generally contends that he has a chronic left shoulder disability resulting from an in-service motor vehicle accident. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999), See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record, and evaluation of its competency, credibility, and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, such as arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post-service (one year for arthritis), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 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 attributed to incurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumption period) is questioned. When the fact of chronicity is service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit has clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection of the basis of continuity of symptomatology (in lieu of a medical nexus opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, arthritis is among the diseases listed in § 3.309(a). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated thereby. See 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefit that can be awarded for any such defect, infirmity or disorder is for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held that if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability. See Davis v. Principi, 276 F.3d 1341, 1345-6 (Fed. Cir. 2002); see also Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the report of the Veteran’s May 1966 service entrance examination documents the Veteran’s reported painful and occasional dislocation of the left shoulder, but no treatment. The examiner indicated that there was no documented dislocation, just soreness that was never reduced by a doctor. Service treatment records (STRs) reflect that the Veteran was involved in an automobile accident in September 1969 and hospitalized for several days. His October 1969 physical profile indicates that the accident resulted in multiple contusions and left musculoskeletal chest pain. A November 1969 radiology report notes a fracture of the left scapula, although it was less clear in comparison to subsequent films. A February 1970 treatment note indicates that the Veteran experienced minimal left shoulder pain and that his x-rays showed a well-healed scapula fracture. On February 1970 service separation examination, the Veteran reported limited range of motion of the right shoulder and issues with his left shoulder when throwing overhand. Post-service private treatment records from various facilities dated from May 1983 to December 2002 document no left shoulder complaints, findings, or diagnosis. The Veteran began receiving VA medical treatment in February 2003. These records document right shoulder complaints beginning in in February 2007, but no reference to left shoulder pain until August 2009. The Veteran underwent VA examination for his left shoulder in June 2009. During the examination, the Veteran reported intermittent pain in his left shoulder blade that prevented him from throwing a ball. Physical examination and x-rays were noted to reveal a normal left shoulder with normal range of motion. In reviewing the Veteran’s STRs, his reported statements, and the objective examination findings, the examiner opined that the Veteran’s claimed left shoulder condition is less likely as not related to injuries incurred during service. As rationale, the examiner stated that there is no current left shoulder disability or diagnosis, nor any objective abnormality of the left shoulder. Although the Veteran’s STRs showed his complaints of left shoulder pain, he had not been treated for a left shoulder condition since his discharge from service and was not currently being treated for any such condition. During the March 2012 Board hearing, Veteran expressed his belief that, as a result of his motor vehicle accident in service, he injured his left shoulder and that this injury became a chronic problem which he believes have risen to the level of being a debilitating disability. The Veteran also testified that his left shoulder has always been painful and although he did not seek medical care for the shoulder, he routinely took medication to mitigate his left shoulder pain. Additionally, the Veteran testified that ten years earlier, he had large cyst removed from his left shoulder at the Ann Arbor VA Medical Center (VAMC). He further testified that the operating surgeon told him that his shoulder disability was definitely caused by repeatedly operating jack hammer (as directed by his superiors) shortly after his left shoulder fracture. In March 2013, December 2014, May 2015, and May 2017, the Board remanded the service connection claim for the AOJ to obtain relevant, outstanding records from Ann Arbor VAMC. However, in March 2018, it was certified that the Veteran had no VA medical records prior to his initial treatment date in February 2003, and that there was no evidence of surgery in the available records. VA treatment records dated since April 2012 document complaints of bilateral and right shoulder pain, and that the Veteran was later offered a right shoulder replacement surgery but declined. See April 2014 VA treatment record. These records also note that, after speaking with his orthopedic doctor regarding his left shoulder pain, x-rays revealed mild degenerative changes of the left shoulder. See, e.g., August 2019 VA treatment record. Pursuant to the November 2018 Board remand, the AOJ obtained a November 2019 VA etiology opinion for the claimed left shoulder disability. Following review of the additional records received, the clinician opined that it is less likely than not that the Veteran’s current left shoulder condition had it its onset during, or is otherwise medically related to, his active service. As rationale, the clinician stated that the Veteran’s enlistment physical noted that the Veteran had a pre-existing left shoulder condition. The clinician noted that, considering the Veteran’s in-service records, which show contusions, abrasions, and the healed fracture, there were no medical records showing any left shoulder diagnosis or treatment since his discharge from the military. Additionally, the recent left shoulder x-ray findings were noted to be over forty-nine years after his military service and the degenerative changes were consistent with age-related changes that are a common finding in the general population of the same age. The clinician further stated that review of the VA medical records revealed that the Veteran consulted VA Orthopedics multiple times for unrelated conditions through the years during his appeal period but not for specific left shoulder issues until August 2019, where the treatment provider noted “the left shoulder shows minimal osteoarthritis sclerosis of the greater tuberosity he is not worried about the left shoulder”. Moreover, the Veteran was offered a replacement for his right shoulder rather than his left shoulder. Considering the above-cited evidence of record in light of the governing legal authority, the Board finds service connection for a left shoulder disability is not warranted. As indicated, medical evidence of record documents current left shoulder disability, diagnosed as mild degenerative changes, beginning in 2019. However, the competent, probative evidence of record fails to establish a nexus between such disability and the Veteran’s service. Initially, the Board notes, as indicated above, that, as the Veteran had a preexisting left shoulder condition that was noted at entrance into service, the presumption of soundness as to the left shoulder does not attach, and the burden falls on the Veteran to establish that the condition underwent an increase in severity in service. See Wagner, 370 F.3d at 1096. Here, the medical evidence of record does not establish that that the Veteran’s preexisting left shoulder condition underwent an increase in severity during service, or that the condition was otherwise aggravated during or as a result of his military service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Such evidence also weighs against a finding that the left shoulder disability diagnosed after service is in any way related to service, to include injury associated with the automobile accident therein. As indicated above, STRS document that, although the Veteran had left shoulder complaints, the competent medical evidence shows that the fracture and contusions he incurred from the accident healed shortly thereafter. Notably, there is no medical indication that the Veteran currently suffers from any recurrent left shoulder dislocations. Also, following service, the first clinical evidence of any left shoulder complaints was in 2009, and the first evidence of degenerative changes was in 2019, more than forty years after the Veteran's separation from active service. Such is clearly well beyond the one-year post-discharge period for establishing service connection for arthritis on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Board also points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Finally, the only competent, probative opinion evidence to address the medical relationship, if any, between the current left shoulder disability diagnosed many years post-service, and the Veteran's active service (to include the accident therein), weighs against the claim. The VA examiners who provided the June 2009 and November 2019 opinions explicitly rendered conclusions that weigh against a finding of service connection for current left shoulder disability. The most recent, November 2019 opinion, in particular, clearly was based on full consideration of the Veteran's documented medical history and assertions, to include the preexisting left shoulder condition, and was supported by complete, clearly stated rationale. As such, the Board accepts such opinion as probative of the medical nexus question. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Significantly, there is no contrary medical evidence or opinion of record, i.e., one that establishes a medical nexus between current left shoulder disability and service, and neither the Veteran nor his representative has presented or identified any such existing evidence or opinion. In fact, the only evidence that tends to support the claim consists of the Veteran's own assertions. During the pendency of this appeal, the Veteran has asserted that he was injured during the motor vehicle accident, and he has suffered from left shoulder problems continuously since shortly thereafter. As a lay person, the Veteran is certainly competent to report matters his own personal knowledge, such as the occurrence of an injury, and symptoms experienced. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To the extent that the Veteran has asserted that he has experienced chronic left shoulder pain since his in-service accident, a February 1970 STR indicates that his facture and contusions were resolved. Moreover, while the Veteran sought private medical care for multiple issues between May 1983 to December 2002, he did not report any left shoulder pain until much later in 2009. Given these inconsistent statements, coupled with the documented medical findings and stark absence of any documented complaints referable to the left shoulder for many years post-service, the Board finds that any current assertions to experiencing continuous left shoulders problems after active service, are not credible. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). Notably, the November 2019 VA opinion provider considered the Veteran's assertions, in light of the other evidence of record, and still rendered negative etiology opinion. Moreover, as for any direct assertions by the Veteran that there exists a medical relationship between his current left shoulder disability and service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some limited medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here the etiology of current left shoulder degenerative changes at issue is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377, n.4 (providing that lay persons are not competent to diagnose cancer). As the Veteran is not shown to be other than a layperson without appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the complex medical matter upon which this claim turns. Id. As, in connection with this claim, lay assertions as to the etiology of the disability for which service connection is sought have no probative value, the Board points out that the Veteran cannot counter the competent, probative medical etiology opinion evidence of record on the basis of his lay assertions, alone. For all the foregoing reasons, the Board finds that the claim for service connection for left shoulder disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann, 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.