Citation Nr: 21002256 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-09 029 DATE: January 13, 2021 ORDER Entitlement to service connection for right shoulder rotator cuff tear and impingement with acromioclavicular arthritis is denied. Entitlement to service connection for left shoulder rotator cuff tear and impingement with acromioclavicular arthritis is denied. FINDINGS OF FACT 1. The Veteran’s right rotator cuff and impingement with acromioclavicular arthritis did not originate during active service. 2. The Veteran’s left rotator cuff and impingement with acromioclavicular arthritis did not originate during active service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for right rotator cuff tear and impingement with acromioclavicular arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for establishing service connection for left rotator cuff tear and impingement with acromioclavicular arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1958 through May 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board remanded the issues for further development, to include a VA examination. The Board finds that the agency of original jurisdiction (AOJ) complied with the mandates of the Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The record shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to a VA examination of the Veteran. The Board notes that the Veteran’s service treatment records (STR) are unavailable, most likely having been destroyed in a fire at the National Personnel Records Center. The VA acknowledged following all procedures and exhausting all efforts to obtain the STRs. The Veteran has been advised of the missing STRs and he has acknowledged that he has no STRs in his possession. Where a veteran’s service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, this heightened obligation does not establish a heightened “benefit of the doubt” or lower the legal standard for proving a claim of service connection; rather, it increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). The analysis herein has been undertaken with this heightened duty in mind. Service Connection 1. Entitlement to service connection for right shoulder rotator cuff tear and impingement with acromioclavicular arthritis 2. Entitlement to service connection for left shoulder rotator cuff tear and impingement with acromioclavicular arthritis Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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). Service connection for certain enumerated diseases may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In addition, for chronic diseases listed in 38 C.F.R. § 3.309(a), such as arthritis, service connection may also be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the post-service symptoms. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b)). The correct understanding of the “condition ‘noted’ during service” is that the condition is one that is indicative of but not dispositive of a chronic disease. Walker, 708 F.3d at 1339. In other words, continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, i.e., “when the fact of chronicity in service is not adequately supported.” 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1339-40. Lay assertions may also serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) “although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. In consideration thereto, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran asserts that his diagnosed rotator cuff tear and impingement with acromioclavicular arthritis of his right and left shoulders are directly related to rigorous physical activities during service. He asserts that upon entry of service, he was in “perfect physical condition” but he injured his shoulders because of continued heavy lifting and manual labor required by his military occupational specialty (MOS) of combat engineer. The Veteran asserts that the performance of this work required him to do a large amount of physical and manual labor, to include building roads and bridges, and carrying machine guns, rocket launchers and other artillery, which caused injuries to his shoulders. He further asserts that he treated with over-the-counter pain reliever and anti-inflammatory medication for his bilateral shoulder pain. The Veteran alleges that he sought in-service medical attention for his shoulder from December 23, 1958 through December 27, 1958. The Veteran, by way of his representative, argues that his STRs are unavailable through no fault of his own and that his assertions are consistent with the history provided therein. As for the medical evidence of record, a June 2003 magnetic resonance imaging (MRI) revealed a partial tear of the supra and infraspinatus muscle with acromioclavicular arthritis and impingement and the Veteran was diagnosed with rotator cuff tear of the right and left shoulders. In 2003, the Veteran underwent right shoulder rotator cuff repair and acromioclavicular joint repair. In May 2006, the Veteran underwent left rotator cuff surgery to include excision of the disk along the left clavicle, anterior/inferior acromioplasty of the left shoulder and repair of the rotator cuff tear in the left shoulder. In 2010, the Veteran underwent left shoulder acromioplasty and rotator cuff repair. In 2012, the Veteran underwent right revision rotator cuff repair and right shoulder acromioplasty. At a March 2017 private examination, the Veteran reported significant pain in his shoulder and had difficulty elevating his left arm over his head upon examination. At a private examination in June 2017, the Veteran reported falling down in September 2016 and hurting his right shoulder whilst exiting his truck. The Veteran also reported severe persistent pain in his right shoulder since the fall. At a May 2019 VA examination, the right shoulder was found stable. The Veteran underwent a VA examination of the left shoulder in October 2019. At the examination, the Veteran complained of progressive shoulder pain due to service. After reviewing the Veteran’s statements and medical records, the examiner opined that was less likely than not the left shoulder disability incurred in or was caused by an in-service injury, event, or illness due to the absence of records prior to the May 2006 surgery. The examiner also found bilateral rotator cuff tendonitis and bilateral tenosynovitis on examination of the Veteran. At an October 2019 VA examination of the right shoulder, the examiner found that it was less likely than not that the right shoulder disability incurred in or was caused by an in-service injury, event, or illness because there was no evaluation or treatment for a shoulder condition until the right shoulder surgery in 2003, approximately 50 years after discharge from service. The examiner based his rationale on a review of the medical evidence of record and in consideration of the Veteran’s reports of symptoms. In an April 2020 VA examination, the examiner found that the operative reports showed fairly extensive bilateral injuries. He opined that the Veteran’s bilateral shoulder conditions were less likely than not incurred in or caused by the claimed in-service injury, explaining that there was no evidence of continuity of care since separation from service. Legal Analysis After a review of the evidence of record, lay and medical, the Board finds that the weight of the evidence does not demonstrate that the Veteran had chronic symptoms related to his acromioclavicular arthritis in service or continuous symptoms since service. As such, service connection for right shoulder disability and left shoulder disability is not warranted. The record does not contain the Veteran’s STRs, including any medical records upon entry of service. Without this evidence, it is difficult to establish whether the right and/or left shoulder disability occurred in service and if it did, whether there is a nexus between the disabilities and the Veteran’s active service. Regardless of the absence of STRs documenting a right and/or left shoulder disability during service, arthritis is listed as an enumerated “chronic disease” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1338-39 (Fed. Cir. 2013). As such, the Board has considered whether the Veteran’s disabilities are presumed service connected based on the classification of acromioclavicular arthritis as a chronic disease. Id. at 1340. Service connection for chronic diseases, like acromioclavicular arthritis, may be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the post-service symptoms. 38 C.F.R. § 3.303(b). Upon review of the record, the Veteran cannot be found service connected under Section 3.303(b) because there was no notation during service and no evidence of post-service continuity of symptoms. First, due to the absence of STRs, a condition of arthritis was not found noted in service. The only evidence of an in-service “diagnosis,” which could be deemed arthritis, is the Veteran’s statement that he sought in-service medical attention for his shoulder from December 23, 1958 through December 27, 1958. This statement would not be enough to establish a chronic disorder in service even if the Board gave the Veteran the benefit-of-the-doubt. Further, the statement, alone, does not provide symptoms sufficient to be considered arthritis. Additionally, there are no indications that the Veteran, as a lay person, has the medical expertise to diagnose a disability. See infra, King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). To the extent he purports to relate a specific diagnosis told to him by a service clinician, the Board accords his recollection no more than marginal probative value, given the passage of more than 4 decades since he spoke to the clinicians, and the fact that his recollection first surfaces in connection with filing a claim seeking monetary benefits from VA. Secondly, assuming arguendo that the Veteran’s statement would satisfy the first factor, there is no evidence of post-service continuity of symptoms of arthritis. As noted above, the VA provided the Veteran an opportunity to cure the defects in his record by supplying medical evidence to support his claim. However, a review of the record indicates that there was no evidence of a right and/or left shoulder disability within a year of service (private or otherwise) and the first instance of left and/or right shoulder disability present in the record occurred in June 2003, more than 50 years after discharge from service. The Veteran acknowledged not having copies his STRs. However, the Veteran also did not submit evidence of treatment for right or left shoulder disability within a year after service which would support continuity of symptoms since service. As such, the Veteran’s left and right shoulder disability, though presently arthritic, cannot be considered an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), as there was no “continuity of symptoms” of such a disease after service. Walker, at 1335-1337. Nor is there any evidence of right or left shoulder disorders until decades after service. With respect to a link between his current disorders and service, the Board finds that the October 2019 and April 2020 VA opinions are more probative than either the April 2020 opinion or the Veteran’s assertions. The former examiners both reviewed and considered the Veteran’s evidence of record, and personally examined the Veteran and considered his report of symptoms in rendering the opinion. (Continued on the next page)   The Veteran’s assertions that he had left and right shoulder rotator cuff tear and impingement with acromioclavicular arthritis due to active service are afforded limited if no probative weight in the absence of a showing that the Veteran has the expertise to render opinions about medical matters. The Veteran, as a lay person, is competent to describe observable symptoms. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to a musculoskeletal diagnosis that is not readily perceptible and typically requires diagnostic testing to discover falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Some medical issues, such as these, require specialized training, and are therefore not susceptible of lay opinions on etiology. There is no evidence showing that the Veteran has medical expertise and he is not competent to provide any medical diagnoses or medical opinions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). In sum, there is no credible evidence of right and/or left shoulder disability in service or until decades after service, and no probative evidence linking any current shoulder disorder to service. Accordingly, the preponderance of the evidence is against the claims, and the claims are denied.. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.