Citation Nr: 21001424 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 06-16 908 DATE: January 8, 2021 ORDER Service connection for a right shoulder disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s right shoulder disability had its onset during any period of active duty for training (ACDUTRA); resulted from a disease during any period of ACDUTRA; or is a result of an injury incurred or aggravated during any period of ACDUTRA or inactive duty for training (INACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for right shoulder disability have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army National Guard from March 1987 to April 2003 with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). His periods of ACDUTRA include March 25, 1987 to July 9, 1987, July 14, 2001 to July 28, 2001, January 24, 2002 to February 28, 2002 and June 15, 2002 to June 29, 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claims in June 2010, April 2012 and December 2018. In April 2012, the Board remanded the issue of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran has been incarcerated several times, including for a felony of rape of a child, since February 2006. However, the specific dates of incarceration are unclear, and such will be addressed in the remand section below. 1. Entitlement to service connection for a right shoulder disability. The Veteran contends that he injured his right shoulder during a tank injury in June 1999 while on ACDUTRA. He indicates, while on ACDUTRA, he drove the tank into an unseen ditch and hit his head on the door hatch. The Veteran has also conceded that he suffered an occupational injury in 1998 where he injured his right shoulder hanging dry wall on a construction job. The Veteran claims both injuries occurred during his military service and, therefore, regardless of which specific injury caused his right shoulder disability, his current right shoulder problems are due to service. In his September 2015 Notice of Disagreement, the Veteran also alleged that his right shoulder injury did not occur on active duty, but was aggravated during active duty. See NOD (September 2005); see also Appellate Brief (August 2020). The Board finds that the preponderance of the evidence is against finding that the Veteran’s right shoulder disability had its onset during any period of ACDUTRA; resulted from a disease during any period of ACDUTRA; or is a result of an injury incurred or aggravated during any period of ACDUTRA or INACDUTRA. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131. Generally, 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, 1166-67 (Fed. Cir. 2004). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence or aggravation for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304 (b), 3.306, 3.307, 3.309. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless those periods are also active service periods. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA). Also, some presumptions will not apply to certain periods of ACDUTRA and INACDUTRA. Smith, 24 Vet. App. at 45-46. If the claimant did not serve for any period of time on active duty, he or she must establish service connection for a disability on a direct basis first in order to achieve “veteran” status and be entitled to compensation. Paulson, 7 Vet. App. at 470; Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established veteran status). The Court held in Hill v. McDonald, 28 Vet. App. 243 (2016), that “once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.” The Court distinguished Hill from prior cases in which it had held that the presumption of aggravation was not applicable to a claim based on a period of ACDUTRA. In this regard, the Court noted that the veterans in those cases sought benefits only for a single disability based on the specified period of ACDUTRA, in contrast to the claimant’s claims for multiple disabilities incurred during one period of ACDUTRA, and where service connection had already been granted for one disability incurred during the ACDUTRA period at issue. See, e.g., Smith, 24 Vet. App. 40; Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Here, multiple physical examinations during the Veteran’s Army National Guard show normal findings as to both upper extremities, including in March 1987 at the time of enlistment, January 1992 and January 2002. See Medical Treatment Record - Government Facility (June 2004). The Veteran also denied any right upper extremity problems at his physicals. Id. The Veteran’s treatment records during his enlistment in the Army National Guard confirm the June 1999 in-service incident, after which the Veteran complained of headaches and radiating neck pain. Id. A line of duty determination was made in June 1999 concluding the injury occurred in the line of duty and was not due to the Veteran’s own willful misconduct. See Military Personnel Record (December 2004). On the other hand, the record confirms the Veteran’s multiple occupational injuries, including in July 1998 as the Veteran claimed, which resulted from a bee sting to his back, while he was landscaping. See Medical Treatment Record - Non-Government Facility (April 2015). Since that time, the Veteran has undergone a right shoulder arthroscopic surgery for rotator cuff repair. Id. Workers’ Compensation records and associated medical records show multiple subsequent injuries, involving knees, back and ankles, for which the Veteran received Workers’ compensation. Id. It also shows a February 2003 diagnosis of right shoulder impingement at work as a drywall finisher. Id. In June 2003, the Veteran was assessed with right shoulder rotator cuff tendinitis. Id. A September 2003 Occupational Health note indicates, based on a review of the Veteran’s record, that the Veteran’s right shoulder impingement syndrome is due to the job exposure, specifically, overhead work, for which the Veteran filed a Workers’ compensation claim. Id. In December 2003, he underwent surgery for his right shoulder. Id. The Veteran filed an industrial injury claim for his occupational right shoulder injury. Id. The Veteran was afforded a VA examination in July 2010, where the examiner found that the Veteran’s right shoulder disability was less likely than not related to his service-connected neck disability, and provided that he could not determine whether the Veteran’s right shoulder was injured in the tank accident while on active duty. VA Examination (July 2010). The examiner noted an industrial right shoulder injury. The May 2018 VA examiner opined that right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. See (C&P Exam (May 2018). The opinion was based on the Veteran denying any significant shoulder conditions during service, and reporting he injured his right shoulder on the job some time ago and was getting Workers’ Compensation for it. The opinion also concluded that the Veteran’s tank injury in service did not lead to any shoulder injuries. The Veteran underwent another VA interview examination in October 2019, where the examiner concluded that the Veteran’s right shoulder disability is less likely than not incurred in or caused by the claimed in-service injury, event or illness. At the interview examination, the Veteran recalled the 1999 in-service tank injury but noted that this accident injured his neck but did not injure his right shoulder, which the examiner noted as consistent with the available service treatment records (STRs). The examiner the medical history provided by the Veteran along with the documented clinical history, to include that STRs revealed no injury of a right shoulder injury in 1999, and that the relevant records reflect no abnormal shoulder pathology, citing specifically the Medical Examination and History in January 2002. The examiner concluded, based on thorough annotation of the Veteran’s right shoulder medical history, that the Veteran’s right shoulder disability resulted from a documented non-military related occupational injury in December 2002. The Board finds the October 2019 VA opinion highly probative as it is predicated on all relevant facts in this case, including facts obtained from examining and interviewing the Veteran, as well as review of the evidentiary record, including extensive work injury treatment for his right shoulder as well as the July 2010 and the May 2018 VA examinations. While the Veteran previously alleged that his claimed disability is related to his period of ACDUTRA, the Board finds that the question regarding the potential relationship between the Veteran’s disability and any instance of his military service to be complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, the question of causation of right shoulder impingement syndrome is a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is not probative evidence. Also, to the extent that the Veteran suggests ongoing symptoms since service, the Board finds this is not credible in view of her STRs and post-service medical examinations, as discussed above. While the Veteran’s lay statements described above have been made, there is no evidence or documentation in any records to support them. In this regard, if a VA examiner explains whether the claimant’s lay assertions are generally consistent or inconsistent with medical knowledge, the Board can weigh that when addressing credibility. Miller v Wilkie, 32 Vet. App. 249, 259-60 (2020). In the instant case, the Board assigns greater probative value to the March 1987, January 1992 and January 2002 periodic examinations reflecting no right shoulder disability or complaints thereof, documentation of a December 2002 work injury to right shoulder; and the October 2019 VA examination. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the appellant did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). The October 2019 VA medical opinion on the Veteran’s right shoulder disability was prepared by a medical examiner with general knowledge, skill, and expertise in common disorders of the skeletal system and musculoskeletal. The VA medical opinion on the skeletal system and musculoskeletal also reflects a review of the claims file and the report cites to specific information in the claims file. Lastly, the VA medical opinion, also, includes a medical rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (stating that most of the probative value of a medical opinion comes from its reasoning). Further, the Veteran has not presented a favorable medical opinion to weigh in this matter. In regard to the Veteran’s assertion that his right shoulder disability was aggravated during active duty, the Board notes that medical records and lay statements are negative for complaints, symptoms, treatment, or diagnoses for right shoulder disability or complaints of right shoulder pain during the established active duty periods. For all other periods of ACDUTRA and INACDUTRA, no presumptions, including the presumptions of soundness and aggravation, are applicable. See Paulson, 7 Vet. App. at 470; see also Smith, 24 Vet. App. 40. Accordingly, in order to establish aggravation, the Veteran has the burden to establish a permanent increase in disability during the relevant period of ACDUTRA or INACDUTRA, and that such permanent increase was beyond the natural progression of that disability. See Donnellan, 24 Vet. App. at 173-75. A careful and thorough review of the record reveals that the Veteran has not met this burden. In this regard, the record shows initial right shoulder complaints of and treatment for right shoulder pain due to occupational injury in late 2002 and thereafter. The Veteran also has not directed the Board to competent lay or medical evidence showing aggravation of the disability. Indeed, the record shows that the Veteran was diagnosed with right shoulder impingement immediately before his retirement from the Army National Guard. In conclusion, after considering all the evidence of record, the Board finds that the preponderance of the competent, credible and probative evidence is against finding that the Veteran’s current right shoulder disability is related to his military service, to include the claimed disability being causally or etiologically related to any disease or injury during ACDUTRA. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). Accordingly, the claim is denied. REASONS FOR REMAND 2. Entitlement to a TDIU. At his VA examination in June 2001, the Veteran indicated that he has not worked since July 2009, when he worked as a truck driver and also driving a street sweeper between 2007 and 2009, but lost his job due to frequent absenteeism due to service-connected headaches. See VA Examination (June 2010). The available records indicate that the Veteran may be currently incarcerated. The record further reflects that the Veteran has also had several periods of incarceration from 2006 to the present. Under applicable VA statute, “[t]he Secretary shall not assign to any veteran a [TDIU] of the [V]eteran resulting from a service-connected disability during any period during which the [V]eteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.” 38 U.S.C. § 5313(c); see also 38 C.F.R. § 3.341(b). This phrase has been interpreted to prohibit adjudication of a TDIU rating if that TDIU rating would begin during a period in which a veteran is incarcerated for conviction of a felony. See VAOPGCPREC 13-97 (Apr. 7, 1997). Because the record does not show that the Agency of Original Jurisdiction has verified the Veteran’s dates of incarceration, including whether he is currently incarcerated, and whether he was incarcerated for felony for any and all periods of incarceration, the Board finds that a remand is required for additional evidentiary development. Additionally, with respect to the Veteran’s education and work experience, the Veteran has not completed and returned the VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) provided to him in April 2017. A substantially complete VA Form 21-8940 is required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. See generally, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”); Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) (the Board “is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases.”). The Veteran is reminded that, while failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to properly address a claim for TDIU. The Veteran’s failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his reason for leaving employment and without sufficient evidence to assess his employment status for the appeal period. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). On remand, the Veteran should be given another opportunity to complete VA Form 21-8940 The matter is REMANDED for the following action: 1. Verify the Veteran’s dates of incarceration during the appeal period and determine whether any period of incarceration was for the conviction of a felony. 2. Ask the Veteran to complete a TDIU claim form (VA Form 21-8940) and ensure that he receives appropriate notice of how to substantiate a claim of entitlement to a TDIU. 3. If VA receives a completed TDIU claim form, then conduct all appropriate development and adjudicate the matter. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. P. 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.