Citation Nr: 21001156 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-34 737 DATE: January 7, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a left foot disability, other than shortened metatarsal disorder, is denied. FINDINGS OF FACT 1. The preponderance of the competent and probative evidence of record is against finding that the Veteran’s right shoulder disability is etiologically related to an in-service injury, event, or disease. 2. The preponderance of the competent and probative evidence of record is against finding that the Veteran’s left shoulder disability is etiologically related to an in-service injury, event, or disease. 3. The preponderance of the competent and probative evidence of record is against finding that the Veteran’s left foot disability is etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. 2. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. 3. The criteria for entitlement to service connection for a left foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. Introduction The Veteran served honorably on active duty in the United States Marine Corps during the World War II Era, from April 1944 to April 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and September 2013 Rating Decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas and Sioux Falls, South Dakota respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held in December 2018. A transcript of the hearing is of record. When this matter was most recently before the Board in August 2020, it was remanded for additional development, specifically, to obtain medical opinions from a VA examiner. The Board observes that the additional development has been conducted, and a Supplemental Statement of the Case (SSOC) was issued in October 2020 continuing the previous denials of the claims at issue herein. The matter has now been returned to the Board for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, service connection can also be established through application of statutory presumptions, including for chronic diseases like arthritis, that become manifest to a compensable degree within one year of separation from service or when there is continuity of symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson is: (1) competent to identify the medical condition; (2) reporting a contemporaneous medical diagnosis; or, (3) describing symptoms at the time that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. See Gilbert, 1 Vet. App. at 53. The Board has considered the entire record, but only evidence pertinent to the determination of service connection for the claimed conditions will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Entitlement to service connection for a right shoulder disability is denied. The Veteran seeks entitlement to service connection for a right shoulder disability, which he contends is “a result of operating a machine gun (20mm) in the service.” Specifically, the Veteran stated that, “due to tight straps and the recoil force of machine gun, the straps would cause pressure and injury to [his] shoulders,” and he has experienced progressively worsening pain “ever since.” In a July 2013 written statement, the Veteran indicated that, since his military discharge he has “been dealing with four metal plates on my shoulder while were [sic] placed there for service related injuries.” During hearing testimony before the undersigned VLJ in December 2018, the Veteran related his shoulder condition to a fall sustained while choking, as well as, the possible administration of cardiopulmonary resuscitation (CPR) thereafter. Pursuant to the Board’s remand in August 2020, the Veteran underwent an in-person VA examination in October 2020. The VA examiner reported the Veteran’s diagnosis as degenerative arthritis diagnosed in July 2017, and referenced x-rays revealing severe osteoarthritic changes with bone production and joint space narrowing. The examiner noted the Veteran’s statement that his worsening shoulder condition “was caused by having to shoot a 20 mm machine gun.” However, the VA examiner opined that the Veteran’s right shoulder condition “was less likely than not incurred in or caused by … bilateral shoulder trauma while strapped to a machine gun, as well as from a fall injury during service.” By way of rationale, the examiner reported “there is no evidence in the medical records that points to a specific inservice [sic] injury or event that is clearly the underlying etiology of his condition;” as well as, “no noted chronicity of the condition and/or continuity of care until many years after service ended.” Additionally, “[t]here is not enough evidence to support development of a chronic condition that was followed and treated during the remainder of service or addressed shortly after service,” according to the VA examiner. Finally, the VA examiner concluded that, “there is not enough evidence to support a nexus between the right shoulder arthritis and the … bilateral shoulder trauma while strapped to a machine gun, as well as from a fall injury during service.” The Board finds there has been substantial compliance with the prior remand directives and assigns substantial probative weight to the VA examiner’s Disability Benefits Questionnaire (DBQ) and medical nexus opinion in this matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner was informed of sufficient facts upon which to base his opinion regarding the Veteran’s claim of service connection, as he conducted an in-person examination, reviewed and referenced pertinent VA and private medical treatment and examination records, and referenced the Veteran’s contentions regarding causation. Id. Further, the VA examiner provided a definitive opinion with supporting rationale, supported with specific examples from the Veteran’s medical records. Id. Notably, the VA examiner’s medical nexus opinion is not contradicted by the other medical evidence of record, including the Veteran’s VA Medical Center (VAMC) and private medical treatment records, as well as, prior VA examination reports. The Board concludes that the VA examiner has applied valid medical analysis to the significant facts of this case in reaching his medical opinion. Id., citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Next, the Board has reviewed the Veteran’s service treatment records (STRs) and post-service treatment records, as well as, the available lay evidence. The Board notes that the STRs are silent for complaints or treatment for a shoulder condition. A Report of Physical Examination dated April 1946 reflects normal extremities at the time of the Veteran’s separation from military service. A private treatment note dated August 2018 indicates the Veteran complained of bilateral shoulder pain; however, physical examination was unremarkable, and no assessment or treatment was prescribed. Also, the Board observes that, as recently as July 2020, the Veteran’s VAMC treatment records do not include a shoulder condition among his active problems. The Board has also reviewed the lay statements of record including, but not limited to, the Veteran’s statements dated July 2013 and January 2020. The Board acknowledges that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of the Veteran’s right shoulder degenerative arthritis first diagnosed in 2017, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Board recognizes the Veteran’s various contentions that his right shoulder disability is due to his military service but finds that the Veteran is not competent to provide such a medically complex etiological opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Further, the Board is unable to confirm the Veteran’s statement regarding having “four metal plates on my shoulder,” as the medical evidence, including the March 2020 VA examination report and surgical histories, does not reflect such. The Board observes that the Veteran was a “self-employed contractor and worked for 33 years in this business before retiring in his middle-late 60’s” and reported no medical history involving a shoulder condition, according to a June 2004 VA examination report. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for a right shoulder disability. 38 C.F.R. §§ 3.303, 3.304. Regarding service connection on a presumptive basis, the Board also finds that the preponderance of the evidence weighs against finding the Veteran’s right shoulder condition manifested as a chronic disease to a compensable degree within one year of military discharge. 38 C.F.R. §§ 3.307, 3.309. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Entitlement to service connection for a left shoulder disability is denied. The Veteran seeks entitlement to service connection for a left shoulder disability, which he contends is “a result of operating a machine gun (20mm) in the service.” Specifically, the Veteran stated that, “due to tight straps and the recoil force of machine gun, the straps would cause pressure and injury to [his] shoulders,” and he has experienced progressively worsening pain “ever since.” In a July 2013 written statement, the Veteran indicated that, since his military discharge he has “been dealing with four metal plates on my shoulder while were [sic] placed there for service related injuries.” During hearing testimony before the undersigned VLJ in December 2018, the Veteran related his shoulder condition to a fall sustained while choking, as well as, the possible administration of CPR thereafter. Pursuant to the Board’s remand in August 2020, the Veteran underwent an in-person VA examination in October 2020. The VA examiner reported the Veteran’s diagnosis as degenerative arthritis diagnosed in July 2017, and referenced x-rays revealing severe osteoarthritic changes with bone production and joint space narrowing. The examiner noted the Veteran’s statement that his worsening left shoulder condition “began around 1945 … [and] was caused by having to shoot a 20 mm machine gun.” However, the VA examiner opined that the Veteran’s left shoulder condition “was less likely than not incurred in or caused by … bilateral shoulder trauma while strapped to a machine gun, as well as from a fall injury during service.” By way of rationale, the examiner reported “there is no evidence in the medical records that points to a specific inservice [sic] injury or event that is clearly the underlying etiology of his condition;” as well as, “no noted chronicity of the condition and/or continuity of care until many years after service ended.” Additionally, “[t]here is not enough evidence to support development of a chronic condition that was followed and treated during the remainder of service or addressed shortly after service,” according to the VA examiner. Finally, the VA examiner concluded that, “there is not enough evidence to support a nexus between the left shoulder arthritis and the … bilateral shoulder trauma while strapped to a machine gun, as well as from a fall injury during service.” The Board finds there has been substantial compliance with the prior remand directives and assigns substantial probative weight to the VA examiner’s DBQ and medical nexus opinion in this matter. See Stegall, 11 Vet. App. at 271; Nieves-Rodriguez, 22 Vet. App. 295. The VA examiner was informed of sufficient facts upon which to base his opinion regarding the Veteran’s claim of service connection, as he conducted an in-person examination, reviewed and referenced pertinent VA and private medical treatment and examination records, and referenced the Veteran’s contentions regarding causation. Id. Further, the VA examiner provided a definitive opinion with supporting rationale, supported with specific examples from the Veteran’s medical records. Id. Notably, the VA examiner’s medical nexus opinion is not contradicted by the other medical evidence of record, including the Veteran’s VAMC and private medical treatment records, as well as, prior VA examination reports. The Board concludes that the VA examiner has applied valid medical analysis to the significant facts of this case in reaching his medical opinion. Id., citing Stefl, 21 Vet. App. at 124. Next, the Board has reviewed the Veteran’s STRs and post-service treatment records, as well as, the available lay evidence. The Board notes that the STRs are silent for complaints or treatment for a shoulder condition. A Report of Physical Examination dated April 1946 reflects normal extremities at the time of the Veteran’s separation from military service. A private treatment note dated August 2018 indicates the Veteran complained of bilateral shoulder pain; however, physical examination was unremarkable, and no assessment or treatment was prescribed. Also, the Board observes that, as recently as July 2020, the Veteran’s VAMC treatment records do not include a shoulder condition among his active problems. The Board has also reviewed the lay statements of record including, but not limited to, the Veteran’s statements dated July 2013 and January 2020. The Board acknowledges that lay persons are competent to provide opinions on some medical issues. See Kahana, 24 Vet. App. 428. However, as to the etiology of the Veteran’s left shoulder degenerative arthritis first diagnosed in 2017, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. In this regard, the Board recognizes the Veteran’s various contentions that his left shoulder disability is due to his military service but finds that the Veteran is not competent to provide such a medically complex etiological opinion. See Davidson, 581 F.3d at 1316. Further, the Board is unable to confirm the Veteran’s statement regarding having “four metal plates on my shoulder,” as the medical evidence, including the March 2020 VA examination report and surgical histories, does not reflect such. The Board observes that the Veteran was a “self-employed contractor and worked for 33 years in this business before retiring in his middle-late 60’s” and reported no shoulder condition or complaints, according to a June 2004 VA examination report. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for a left shoulder disability. 38 C.F.R. §§ 3.303, 3.304. Regarding service connection on a presumptive basis, the Board also finds that the preponderance of the evidence weighs against finding the Veteran’s left shoulder condition manifested as a chronic disease to a compensable degree within one year of military discharge. 38 C.F.R. §§ 3.307, 3.309. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Entitlement to service connection for a left foot disability, other than shortened metatarsal disorder, is denied. The Veteran seeks entitlement to a left foot disability, other than congenital shortened metatarsal disorder, claimed as left foot pain, discomfort, and numbness. A Report of Physical Examination and Induction dated February 1944 notes that the Veteran possessed “[s]hort 4th metatarsal right, 3rd and 4th metatarsal left.” In October 2020, the Veteran stated to a VA examiner that “he was born with a foot deformity to bilateral feet and because of that he said he developed flat feet and also stated that during boot camp his feet used to bleed and his foot condition worsened.” Pursuant to the Board’s remand in August 2020, the Veteran underwent the above-noted in-person VA examination in October 2020. The VA examiner reported the Veteran’s left foot diagnoses as pes planus, degenerative arthritis, and brachymetatarsia, with symptoms including, inter alia, sharp pain and flare-ups. The examiner opined that the Veteran’s left foot pes planus, arthritis, and brachymetatarsia “are less likely than not due to, related to, or aggravated by an in-service event, injury, or disease.” According to the VA examiner, “the medical record is silent in regards to an inservice [sic] injury causing injury to the left foot.” Further, the VA examiner opined that the Veteran’s left foot condition was “less likely than not incurred in or caused [by] the left foot pain and bleeding while marching during military service, as well as, left foot pain ever since during [sic] service.” By way of rationale, the examiner noted “there is not evidence to support or establish evidence of a chronic foot condition during service,” and “no noted chronicity of the condition and/or continuity of care until many years after service ended.” The VA examiner also indicated that, “[t]here is not enough evidence to support development of a chronic condition that was followed and treated during the remainder of service or addressed shortly after service.” While recognizing the Veteran’s statements regarding causation, the examiner noted that, “there is no evidence in the medical records that points to a specific inservice [sic] injury or event that is clearly the underlying etiology of his condition,” and that there is insufficient “evidence to support a nexus between the left flat foot, brachymetatarsia, and left foot arthritis and the left foot pain and bleeding while marching during military service.” The Board finds there has been substantial compliance with the prior remand directives and assigns substantial probative weight to the VA examiner’s DBQ and medical nexus opinion in this matter. See Stegall, 11 Vet. App. at 271; Nieves-Rodriguez, 22 Vet. App. 295. The VA examiner was informed of sufficient facts upon which to base his opinion regarding the Veteran’s claim of service connection, as he conducted an in-person examination, reviewed and referenced pertinent VA and private medical treatment and examination records, and referenced the Veteran’s contentions regarding causation. Id. Further, the VA examiner provided a definitive opinion with supporting rationale, supported with specific examples from the Veteran’s medical records. Id. Notably, the VA examiner’s medical nexus opinion is not contradicted by the other medical evidence of record, including the Veteran’s VAMC and private medical treatment records, as well as, prior VA examination reports. The Board concludes that the VA examiner has applied valid medical analysis to the significant facts of this case in reaching his medical opinion. Id., citing Stefl, 21 Vet. App. at 124. Next, the Board has reviewed the Veteran’s STRs and post-service treatment records, as well as, the available lay evidence. The Board notes that the STRs are silent for complaints or treatment for a left foot condition. A Report of Physical Examination dated April 1946 reflects normal extremities at the time of the Veteran’s separation from military service. Also, the Board observes that, as recently as July 2020, the Veteran’s VAMC treatment records do not include a left foot condition among his active problems. The Board notes that the Veteran’s private physical therapist, Ms. J.K.C., authored an opinion dated December 2018. According to Ms. J.K.C., “[t]he 4th and 5th metatarsals are not a part of the medial longitudinal arch and therefore are not part of the flat foot deformity.” Further, Ms. J.K.C. stated that, “[p]es planus may occur congenitally as a result of ligamentous laxity or lack of neuromuscular control.” According to her, pes planus “may also be acquired over time due to causes such as repetitive high impact activity, obesity, trauma, neuropathy, and posterior tibial tendon dysfunction.” The Board finds the opinion of Ms. J.K.C. to be of little probative value for purposes of establishing entitlement to service connection. First, there is no indication that she was informed of sufficient facts upon which to base her opinion regarding the Veteran’s claim of service connection, such as by reviewing pertinent VA and private medical treatment and examination records or referencing statements by the Veteran. See Nieves-Rodriguez, 22 Vet. App. 295. Next, Ms. J.K.C. did not provide a definitive medical nexus opinion and with supporting rationale, supported with specific examples from the Veteran’s medical records, and instead referenced numerous possible causes for pes planus. Id. While Ms. J.K.C. opined that there is no etiological relationship between the Veteran’s congenital left foot condition and pes planus, such opinion is of no benefit for purposes of establishing entitlement to service connection in this matter. The Board has also reviewed the lay statements of record including, but not limited to, the Veteran’s statement dated September 2012 and January 2020. The Board acknowledges that lay persons are competent to provide opinions on some medical issues. See Kahana, 24 Vet. App. 428. However, as to the etiology of the Veteran’s left foot pes planus and degenerative arthritis, the issue of causation is a medical determination outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. In this regard, the Board recognizes the Veteran’s contention that his left foot condition, other than shortened metatarsal disorder, is due to his military service but finds that the Veteran is not competent to provide such a medically complex etiological opinion. See Davidson, 581 F.3d at 1316. The Board observes that the Veteran was a “self-employed contractor and worked for 33 years in this business before retiring in his middle-late 60’s” and reported “[c]ongenital flat feet,” according to a June 2004 VA examination report. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for a left foot disability. 38 C.F.R. §§ 3.303, 3.304. Regarding service connection on a presumptive basis, the Board also finds that the preponderance of the evidence weighs against finding the Veteran’s left foot condition manifested as a chronic disease to a compensable degree within one year of military discharge. 38 C.F.R. §§ 3.307, 3.309. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, 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.