Citation Nr: 21000682 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-19 544 DATE: January 5, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a right shoulder disability that began during service or is otherwise related to an in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from November 1974 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2017, the Veteran provided testimony before the undersigned. A copy of the transcript is associated with the claims file. This matter was previously remanded in December 2017 and April 2019, and has been returned to the Board for appellate consideration. The Board notes in the April 2019 remand, the Board requested that the RO obtain the Veteran’s private treatment records from the Naval Hospital at Beaufort from 1995 to 2015. All available records have since been associated with the claims file. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury 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 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. Generally, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arthritis, listed in 38 C.F.R. § 3.309 (a), that manifest to a degree of 10 percent within one year of service separation. 38 C.F.R. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309 (a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303 (b). Entitlement to service connection for a right shoulder disability is denied. The Veteran asserts that his right shoulder disability is the result of his service. Service treatment records (STRs) demonstrate numerous complaints and treatment only for a left shoulder disability. A September 1981 STR reflects a history of trauma from a month prior and a left shoulder muscle strain. A March 1983 STR shows complaints for right arm discomfort while at HMS. An August 1993 STR notes the Veteran fell on his outstretched left hand when he slipped on ice in 1990. A November 1993 and March 1994 STR continues to show complaints for left shoulder pains. On his April 1994 separation physical, the Veteran reported a left shoulder injury in 1986 and 1990. A July 1994 STR reflects impingement pain in the shoulder but does not indicate which shoulder this is in reference to. Another July 1994 STR demonstrates a history of and treatment for chronic low back pain and left shoulder tendonitis/impingement syndrome, as well as, the Veteran’s complaints for right lower extremity numbness and weakness with concomitant right upper extremity tingling in the forearm and hand. The treating clinician’s notes reflect an assessment for chronic low back and right shoulder pain. However, the Board notes that this appears to be a possible typographical error due to the nature of the Veteran’s extensive complaints for left shoulder pains and no complaints for the right shoulder. Post-service records from Beaufort Naval Hospital continue to show extensive reports and treatments for a left shoulder disability. A September 1995 treatment note demonstrates a complaint for shoulder pain as a result of falling forward on icy steps in New Hampshire while a November 1995 treatment note continues to reflect shoulder pains. See December 2019 Medical Treatment Record. However, the first definitive record of a right shoulder condition is not shown until November 2003 in which the Veteran reported chronic right shoulder pain and numbness down to his elbows with onset within the last several months; he also reported that he did a lot of lifting. The record reflects an assessment of rotator cuff tendonitis. In a December 2003 record, the Veteran reported that he fell on his left shoulder in 1991 and that his left shoulder bothered him more than his right shoulder; he also reported intermittent numbness and tingling down to the elbows bilaterally. An August 2011 treatment note reflects right shoulder pain for several years, even with treatment, and that impressions of the shoulder demonstrate full thickness tear of distal mid fibers of supraspinatus tendon and crabmeat appearance of distal anterior fibers, mild hypertrophic change of acromioclavicular joint, mild cortical irregularity and fibrocystic change of lateral humeral head, and probable posterior superior labral tear. A November 2011 operative report demonstrates a surgical procedure for right shoulder impingement rotator cuff tear and bicipital tendonitis. See December 2019 Medical Treatment Record. During his January 2015 DRO hearing, the Veteran reported that he worked as a machinist in the Marine Corp which consisted of lifting and carrying heavy metals, loading and removing them off machines, and then putting onto or building certain machines. He indicated the first incident involving injury to his shoulder occurred when he worked on a window and fell off a ladder onto a Conex box. He stated that he placed his arm back to brace himself which resulted in his shoulder injury. He reported going to sick bay, but that they focused more on his back injury. He reported that the second injury occurred in Lawrence, Massachusetts when he was on burial duty, where he slipped on a patch of ice on a flight of steps as he was loading weapons onto the armory. He testified that he was due for a promotion and did not want to seek treatment other than a sling for his arm; he stated that he was given shots and therapy instead. He also reported that he sought treatment within one year following separation from service in which he was given shots for the pain. He noted an MRI revealed the extent of his shoulder injury and that the doctor informed him it came from favoring the left arm. The Veteran was afforded a VA examination in January 2017. The report reflects a diagnosis for right rotator cuff tear and acromioclavicular joint osteoarthritis. The Veteran continued to report that he fell in 1992, slipped, and braced himself with his hand and that he went to medic where he was given a sling and ibuprofen. He stated that he continued to have pain but did not seek treatment. He further reported that following separation he was seen at Beaufort Naval Hospital where he was told he had shoulder impingement and treated with steroid injections. He stated that he had a rotator cuff repair in 2010 and continued with physical therapy and medications. The examiner opined that the Veteran’s right shoulder disability was less likely than not related to service. The examiner cited to several STRs, including the July 1994 record evidencing treatment for right shoulder impingement and low back pain with no diagnosis, a November 2003 record evidencing chronic right shoulder pain but normal x-rays, and a November 2011 record noting chronic right shoulder pain for several years and a diagnosis of rotator cuff tendonitis. The examiner then indicated the following: The Veteran had a rotator cuff tear which could be due to an accident such as the Veteran described while in service, but given the lack of reported significant atrophy, which would occur in a tear that old, it is unlikely. The Veteran had shoulder pain documented in 1994, but no record or diagnosis of trauma or articular damage, and a radiograph from 2003 was negative for current or past signs of disease. He reports continued shoulder pains, but this is non-specific and not indicative of a chronic disability, and unfortunately I did not find records for recurrent visits, including the mentioned visits within a year of discharge, to establish a nexus. During his September 2017 Board hearing, the Veteran continued to echo his reports of the two injuries during active service that led to his right shoulder injury. Again, he stated that he fell from a ladder while trying to scrape welding off a window and used his shoulder for impact before he landed on a metal Conex box; he stated the injury occurred somewhere between 1982 or 1983 while stationed at Buford Marine Corps Air Station, HMS. He reported seeking treatment at sick bay but that they focused more on treating his back. He then reported that the second injury occurred somewhere between 1991 or 1992 in Lawrence, Massachusetts where he slipped on icy steps during burial duty and was treated in Kittery, Maine with heat packs. He reported those medical records were missing. He also stated that he continued to endure pain during service but did not seek treatment until a few years following service. He also reported ongoing physical therapy treatments at the time of the hearing. The Veteran detailed his post service treatments at Beaufort Naval Hospital for his shoulder condition and the doctor’s reports that when he jammed his shoulder it pushed out and ripped. Finally, the Veteran indicated that his right shoulder pains are constant and flares up with use of the arm. A June 2020 CAPRI record notes all records from Charleston VAMC are VA examinations and that there are no Augusta VAMC records. The Board finds that the weight of the probative evidence is against a finding that the Veteran’s right shoulder disability was caused by or incurred in service. The Veteran reported a left shoulder injury in 1986 and 1990, and did not report a right shoulder injury during his April 1994 separation physical. Furthermore, STRs reflect extensive complaints and treatment for his left shoulder and his reported in-service injuries but not the right shoulder. Moreover, the January 2017 VA examiner opined that current right shoulder disability was not related to service. The Board affords probative weight to the VA examiner's opinion because it was based on a review of the record and an in-person examination of the Veteran, and is supported by appropriate rationale that explains the medical basis for the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (finding that an adequate medical examination must provide a rationale and explanation for its conclusions). It is also consistent with the record. Therefore, the Board concludes that the probative evidence of record does not indicate that it is at least as likely as not that the Veteran's current right shoulder disability is directly related to his active service. The preponderance of the evidence is also against a finding that osteoarthritis manifested within a year of service or that there has been continuity of symptomatology with respect to the right shoulder since service. Although the Veteran asserts that he was treated for his right shoulder within a year of service and his right shoulder symptoms have been continuous since, the evidence of record does not definitively show complaints or treatment for a right shoulder disability until November 2003, nine years following separation. The Board does not doubt the Veteran’s contentions that his right shoulder disability is related to service. However, there is no medical evidence of record connecting his current right shoulder disability to an in-service event. Numerous STRs and post service records only attribute his currently service-connected left shoulder disability to the claimed in-service injuries. While the Veteran believes his right shoulder disability is related to service, he is not competent to provide a nexus opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the objective evidence of record which fails to show a relationship between his disability and service. In the absence of probative evidence of a disability in service; a disability manifesting within a year of service discharge; or a nexus between the claimed right shoulder disability and an in-service injury, event, or disease; the Veteran’s claim for service connection for his right shoulder disability fails. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.