Citation Nr: 21000595 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-28 247 DATE: January 5, 2021 ORDER Service connection for a right shoulder condition is denied.   FINDING OF FACT The Veteran’s right shoulder condition did not have its onset during service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to March 1990. The case is on appeal from a June 2008 rating decision. In June 2014, the Veteran testified at a Board hearing. The Board remanded the claim for additional development in August 2014, April 2017, December 2018, and April 2020. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a right shoulder condition. Legal Criteria 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. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including arthritis, 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. In addition, in determining whether service connection is warranted for a disability, 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 (1990). Analysis The Veteran is seeking service connection for a right shoulder condition. He contends he has a current right shoulder disability related to a fall down a stairwell during service. See Board Hr’g. Tr. at 8. The Veteran also contends that he has a shoulder injury due to lifting heavy equipment. See January 2009 lay statement. Alternatively, the Veteran contends that he has a right shoulder disability that is secondary to his service-connected thoracolumbar spine disability. Initially, the evidence of record establishes that the Veteran has a current disability pertaining to his right shoulder. An October 2020 VA examination reflects that the Veteran is diagnosed with right shoulder conditions including bicipital tendonitis, degenerative arthritis, and status post rotator cuff tendon repair. Accordingly, the Board finds the current disability requirement is established. In addition, the evidence of record also establishes the occurrence of an in-service event or injury, particularly when reasonable doubt is resolved in the Veteran’s favor. The Veteran contends that he injured his right shoulder when he fell down a staircase while holding a dock line when he was stationed aboard the U.S.S. Raleigh. The Veteran’s service treatment records (STRs) reflect that he was treated for a shoulder laceration in January 1987 after falling against a ship locker door. Thus, the Board finds that it is at least as likely as not that the Veteran sustained an in-service injury to his right shoulder, as he contends. Concerning the direct service connection theory of entitlement, the question becomes whether the Veteran’s current right shoulder condition is related to his in-service right shoulder injury or had its onset in service. In this regard, the evidence of record includes the opinion of an examiner who provided a November 2015 VA examination, the opinion of an examiner who provided an October 2019 VA examination, and the opinion of an examiner who provide an October 2020 VA examination. The examiner who provided the November 2015 VA examination concluded that it is less likely than not that the Veteran’s right shoulder conditions were incurred in service or caused by the noted in-service right shoulder injury. She reasoned that the shoulder laceration noted during service was superficial and healed without sequalae. She also noted the Veteran’s rotator cuff tear was not diagnosed until years after service. An additional examination and opinion was obtained in October 2019 pursuant to the Board’s April 2017 remand. The examiner concluded that it is less likely than not that the Veteran’s right shoulder conditions were incurred during service or caused by the fall reported by the Veteran. In coming to this conclusion, the examiner relied on the absence of any records demonstrating a right shoulder condition or the onset of a right shoulder condition during service. In coming to this conclusion, she found significant the gap of more than two decades with no chronicity or continuity. The Board remanded the claim for and additional opinion in April 2020 as it determined the opinions of record were not entirely sufficient to decide the claim as the examiner who provided the October 2019 relied gap of over two decades between service separation and a documented shoulder complaint, although the documented gap was 15 years. The Veteran subsequently underwent an October 2020 VA examination. The examiner who provided the October 2020 VA examination concluded it is less likely than not that the Veteran’s right shoulder conditions were incurred in or caused by the claimed in-service injury. She explained the in-service right shoulder injury was acute only, as there is no evidence of chronicity of care for a shoulder laceration, and a shoulder laceration would not cause arthritis. She also noted that a review of all available documents reflects that any mention of a shoulder condition is absent until 2005, which is 15 years after the Veteran’s separation from service. The Board acknowledges the Veteran’s contention that his right shoulder conditions are related to his in-service shoulder laceration. The Board notes that although the Veteran is competent to report his symptoms pertaining to his right shoulder conditions, a determination as to whether there is a nexus between the Veteran’s current right shoulder conditions and his service is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). As the Veteran has no known or reported medical expertise, he is not legally competent to opine on a relationship between his right shoulder conditions and in-service shoulder injury; thus, his opinion lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. Consequently, the Board gives more probative weight to the VA opinions described above. The Board finds the opinions, cumulatively, to be persuasive, as they rely on expert knowledge and the Veteran’s medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Even if the earlier opinions were not entirely sufficient in and of themselves, the opinions, when taken together, support that the Veteran’s in-service right shoulder laceration is unrelated to his current right shoulder conditions, as the laceration was an acute condition. The Board is mindful that the VA examiners materially relied on the absence of treatment during service and after service. The VA examiner’s rationale is sound, however, as VA treatment records reflect the Veteran first sought care in January 2005 for a shoulder condition. At that time, he stated his right should pain began four to five weeks earlier due to a fall. See Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). In addition, there is no similar medical opinion of record weighing in favor of service connection. As the preponderance of the evidence is against finding that a right shoulder condition began during active service, or is otherwise related to an in-service injury, event, or disease, it follows that the nexus element of the claim is not established. As such, service connection is not warranted for a right shoulder condition based on the theory of direct service connection. Next, because the Veteran has a diagnosis of arthritis of the right shoulder, which is one of the listed chronic diseases, the Board has carefully considered whether service connection is warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with arthritis during service. As such, it cannot be said that the chronic disease (arthritis) was established and not subject to legitimate question during service. Furthermore, the evidence does not reflect arthritis to a compensable degree within one year of the Veteran’s separation from service. Rather, as noted above, the earliest complaint of right shoulder problems occurred 15 years after the Veteran separated from service. As to a continuity of symptomatology, the Veteran has indicated that he had pain in his shoulder since service and prior to his fall in 2005. The Veteran is competent to report the presence of symptoms and frequency of treatment. See Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24 Vet. App. at 428. However, the Board does not find the report of continuous symptoms to be credible because, as noted above, there is a gap of at least 15 years between the Veteran’s discharge from service and the first documented report of right shoulder complaints. As noted above, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran denied having shoulder trouble at the time of his March 1990 separation physical. Furthermore, a January 2005 VA treatment record reflects the Veteran reported that the onset of his shoulder pain began four to five weeks earlier at the time of a fall. See Horn, 25 Vet. App. at 240 n.7. Thus, the absence of evidence is negative evidence in this case. Accordingly, the Board finds that a preponderance of the evidence weighs against the claim based on a theory under 38 C.F.R. § 3.303(b). Finally, the Board will address whether the Veteran is entitled service connection for his right shoulder condition under a theory of secondary service connection, as he contends his right shoulder condition is secondary to his service-connected thoracolumbar spine condition. In this regard, the evidence of record includes the opinion of an examiner who provided an October 2019 VA examination and the opinion of an examiner who provided an October 2020 VA examination. The examiner who provided the October 2019 VA examination concluded that it is less likely than not that the Veteran’s service-connected thoracolumbar spine condition caused or aggravated the Veteran’s right shoulder condition. She explained the right shoulder condition is a separate entity from the service-connected thoracolumbar spine condition and is unrelated to it. The examiner noted further that medical literature does not support that the Veteran’s thoracolumbar spine conditions causes the Veteran’s right shoulder conditions and there is a lack of data in the claims file to establish such a connection. The Board remanded the claim for and additional opinion in April 2020 as the examiner who provided the October 2019 did not provide an entirely sufficient rationale with regard secondary aggravation. The Veteran subsequently underwent an October 2020 VA examination. The examiner who provided the October 2020 VA examination concluded that it is less likely than not that the Veteran’s right shoulder condition is caused by the Veteran’s service-connected thoracolumbar spine condition. She explained the current right shoulder condition and thoracolumbar spine condition are not medically related. The examiner noted the current right shoulder condition is a separate entity entirely from the thoracolumbar spine condition and is unrelated to it. She explained further the shoulder and the lumbar are not connected and do not cause conditions of each other. She also noted that a thorough review of medical literature failed to demonstrate a causal relationship. The examiner also provided a negative opinion with regard to whether the Veteran’s right shoulder condition is aggravated by his service-connected thoracolumbar spine condition. She explained that as they are entirely separate conditions, they do not affect each other, therefore there can be no aggravation. The Board acknowledges the Veteran’s contention that his right shoulder conditions are secondary to his service-connected thoracolumbar spine conditions. Similar to the analysis above, a determination as to whether his current right shoulder conditions are caused or aggravated by his service-connected thoracolumbar spine conditions is a complex matter requiring related medical expertise. See Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24 Vet. App. at 428. As the Veteran has no known or reported medical expertise, he is not legally competent to opine on a relationship between his right shoulder condition and service-connected thoracolumbar spine condition; thus, his opinion lacks probative value, and an opinion by a qualified medical expert is required to decide the claim. Consequently, the Board gives more probative weight to the VA opinions described above. The Board finds the opinions, cumulatively, to be persuasive, as they rely on expert knowledge, medical literature, and the Veteran’s medical history. Even if the earlier opinion was not entirely sufficient in and of itself, the opinions, when taken together, support that the Veteran’s right shoulder condition is not secondary to his service-connected thoracolumbar spine conditions. In addition, there is no similar medical opinion of record weighing in favor of secondary service connection. As the preponderance of the evidence is against finding that a right shoulder condition is caused by or aggravated by his service-connected thoracolumbar spine conditions. As such, service connection is not warranted for a right shoulder condition based on the theory of secondary service connection. In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, under the direct, presumptive, and secondary theories of service connection, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is not warranted for a right shoulder condition. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.