Citation Nr: 21003415 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-14 075 DATE: January 21, 2021 ORDER Entitlement to service connection for left shoulder condition is denied. Entitlement to service connection for right shoulder condition is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder disability did not have its onset during active service, did not manifest within one year of separation from active service, and is not otherwise caused by active service. 2. The Veteran’s right shoulder disability did not have its onset during active service, did not manifest within one year of separation from active service, and is not otherwise caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left shoulder disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for service connection for right shoulder disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to July 1981. In June 2013, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The VLJ who conducted the June 2013 hearing is no longer with the Board. Generally, a judge who presides over a Board hearing must also participate in adjudication of the case. In a September 2017 letter, the Veteran was advised accordingly and afforded the opportunity to have a hearing before another VLJ. In October 2018, the Veteran was afforded a Board hearing before the undersigned VLJ. A transcript of the hearing is of record. In an August 2015 decision, the Board denied the Veteran’s claim for entitlement to service connection for bilateral shoulder condition. However, in November 2016, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) vacating the Board’s decision and remanding the claim for further development. Throughout the appeal, the Veteran stated that in 1980, he was involved in a NIS/NCIS sting operation. However, the sting did not go according to plan, law enforcement took him down, handcuffed him, and picked him up by his cuffed hands. The Veteran claims that this action may have resulted in his bilateral shoulder injury. He suggested that there may be documentation of the sting. The parties to the JMR agreed that the VA failed to obtain evidence needed to substantiate the Veteran’s claim. The parties also agreed that the Board relied on an inadequate medical examination. In April 2019, the Board remanded the claim for further development. 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the record must contain: (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). Alternately, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, to include arthritis, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for bilateral shoulder disability The Veteran contends that his bilateral shoulder disability is due to military service. The Veteran has a current diagnosis of bilateral shoulder humeral head prostheses in good juxtaposition with the glenoid and degenerative changes. As such, element one under Shedden is met. The Veteran’s service treatment records (STRs) documents complaints, treatments, and/or diagnosis for a left shoulder pain. As such, element two under Shedden is met. During his February 1978 Report of Medical Examination: Enlistment examination, the Veteran’s upper extremities were clinically normal. During his January 1980 Report of Medical Examination, Replacement exam, the Veteran’s upper extremities were normal. On September 19, 1980, the Veteran was seen for back pain along his left shoulder blade. The examiner stated that the Veteran appeared to be having back problems. He was diagnosed with muscle strain. During his January 1981 Report of Medical Examination: MEB examination, the Veteran’s upper extremities were noted to be normal. The Veteran stated that he did not experience painful or trick shoulder. In September 2010, the Veteran was seen at the Kalispell CBOC for bilateral shoulder pain. The Veteran stated that in June 2010, he fell on his shoulder. On September 7, 2010, he saw a Physical Therapist. When the therapist was working on the Veteran’s shoulder, the Veteran heard a “popping” sound. Imaging revealed moderate degenerative joint space narrowing at the glenohumeral joint with moderate inferior marginal osteophytic change present at the glenoid and adjacent humeral head. In November 2011, the Veteran was diagnosed with AC arthritis, impingement right shoulder. In his December 2011 Statement in Support of Claim, the Veteran stated that he participated in a NIS operation where he was subsequently handcuffed by military police. The MP grabbed his cuffed hands and lifted him up. He felt a pull in both shoulders and heard a pop. He stated that he was seen in sick hall for his shoulders. In January 2012, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral shoulder disability. The Veteran stated that in October or November 1980, he was grabbed and tackled by MPs, cuffed, and pulled up from behind. He also stated that in approximately early 2006, he had left arm hyperextended behind band injuring shoulder and was seen at Kalispell Regional. In 2009, he was involved in a motor vehicle accident (MVA). He wore his seat belt but injured his left shoulder. The Veteran worked as a mailman for eight years. He carried mailbags. He is also a log home builder. The examiner diagnosed the Veteran with left shoulder severe osteoarthritis at the glenohumeral joint and acromioclavicular joint and left shoulder impingement. The examiner diagnosed the Veteran with status post (s/p) right shoulder distal clavicle resection and subacromial decompression and glenohumeral arthritis. The examiner stated that based on a review of the Veteran’s C-File, STR, and CPRS, the Veteran does currently suffer from a left shoulder condition of osteoarthritis and impingement syndrome. However, the examiner stated that there is no objective evidence to support an injury occurred to the left shoulder while in service. Therefore, the Veteran’s shoulder condition is not caused by or a result of his service/event in service. During his September 2013 hearing, the Veteran stated in late November or December of 1980, and due to a medical condition, he was being transferred off the ship. He stated that there was a local shipyard worker who sold moonshine and drugs that killed one sailor at the shipyard. The chief on his ship and the Naval Investigative Services (NIS) asked the Veteran, and he agreed, to purchase moonshine and/or drugs from the worker. So, the Veteran set up the buy. However, shore patrol was not aware of the plans, and the Veteran was tackled, and his hands were cuffed behind his back. The shore patrol lifted him by his handcuffs, and he felt two pops. The next day, the Veteran went to the ship doctor but two or three days later, he was taken off the ship and transferred. In a March 2019 Correspondence, the Department of Veteran’s Affairs, VA Records Management Center stated that it found no records on file regarding the Navy Criminal Investigation Service Investigative Report. It stated that it is not the custodian of certain military records, to include official personnel records, medals, or service medical records for members discharged prior to 1992 or after January 1, 2014. To assist VA in fulfilling its request, VA Records Management Center referred VA’s request to the appropriate agency, i.e., National Personnel Records Center (Military Personnel Records). In April 2019, the Board remanded the claim for further development. The Board noted that throughout the appeal, the Veteran asserted that in 1980, he was involved in a NIS/NCIS sting operation that may have resulted in his bilateral shoulder injury. The Veteran suggested that there may be documentation of the sting. In June 2019, National Personnel Records Center submitted the Veteran’s Military Personnel Record to VA. However, the Veteran’s Military Personnel Record does not document a sting or any event that could have led to the Veteran’s bilateral shoulder disability. In December 2019, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral shoulder disability. The Veteran stated he was taken off his ship because he was being medically discharged. However, prior to being discharged, he was asked to help bust a drug dealer who was hanging out at the dock. The Veteran stated that he was mistakenly arrested in the sting operation, i.e., his hands were cuffed behind his back, and he was lifted to his feet by his arms. He stated that his shoulders were injured when this incident occurred 1980. He stated that he sought medical care in early 1981 for complaints of associated shoulder pain and was given over the counter medicines but recalls no diagnosis or in depth work up was performed. He stated that he was on sedentary duty at the time awaiting medical discharge due to knee condition. The Veteran stated pain continued after separation, and he eventually had shoulder reconstruction or replacement surgeries which he stated were not successful. The examiner stated that the Veteran does not have a diagnosis associated with the alleged sting operation. However, the examiner diagnosed the Veteran with bilateral shoulder humeral head prostheses in good juxtaposition with the glenoid and degenerative changes. Based on careful review and consideration of specific evidence in the Veteran’s claims file, the examiner stated that Veteran did not have a diagnosis of a left or right shoulder condition incurred in or caused by the sting operation during service because there was no objective clinical evidence in the available electronic STR’s indicating a left or right shoulder injury was incurred during military service. The examiner stated that the objective clinical evidence indicated that the Veteran’s left shoulder condition was clinically linked to degenerative arthritis noted on imaging May 26, 2011, 30 years after separation from military service with no objective clinical evidence of a clinical link to any event during military service. The Veteran’s right shoulder condition was clinically linked to degenerative arthritis noted on imaging January 3, 2012, 31 years after separation from military service with no objective clinical evidence of a clinical link to any event during military service. Based on the evidence of record, the Board finds that service connection for the Veteran’s bilateral shoulder disability is not warranted on a direct basis. The Board notes that the Veteran’s STRs document complaints and treatments for back pain along his left shoulder blade. However, on his separation physical, the Veteran’s upper extremities were noted to be normal. The Veteran himself stated that he did not experience painful or trick shoulder. Additionally, the 2019 VA examiner stated that the Veteran did not have a diagnosis of a left or right shoulder condition incurred in or caused by the sting operation during service, and there was no objective clinical evidence in the available electronic STR’s indicating a left or right shoulder injury was incurred during military service. However, the objective clinical evidence indicated that the Veteran’s left and right shoulder disability was clinically linked to degenerative arthritis diagnosed in May 26, 2011 and January 3, 2012, respectively. Additionally, after the in-service complaint of for back pain along his left shoulder blade, the first medical evidence of shoulder pain/condition was in 2010, i.e., 22 years after discharge from service. This post-service shoulder complaint was due to a fall that caused the Veteran to experience pain. The Board notes that the fact that there were no records of any complaints or treatments involving the Veteran’s shoulder condition for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). Therefore, the Board finds that element three under Shedden has not been met. The Board also finds that service connection for bilateral shoulder degenerative changes on a presumptive basis is not warranted as the record does not show evidence of degenerative changes within one year of separation from active duty. The first competent evidence suggestive of degenerative changes was in 2010, i.e., 22 years after his discharge from service. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 C.F.R. §§ 3.307, 3.309 is not warranted. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s bilateral shoulder disability. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the bilateral shoulder disability and active service is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In the absence of a nexus, the claim for service connection for bilateral shoulder disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.