Citation Nr: 21003753 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-11 411 DATE: January 22, 2021 ORDER Entitlement to service connection for a bilateral shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s bilateral shoulder disability is related to the Veteran’s active duty service. CONCLUSION OF LAW The criteria for service connection for Veteran’s bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Army from March 2005 to March 2006. This matter is on appeal from an April 2013 rating decision. The Veteran was afforded a December 2017 hearing before the undersigned Judge. A transcript of the hearing has been associated with the record. The Board remanded this appeal in October 2015, January 2016, June 2017, April 2018, and January 2019 for additional 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board must 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. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral shoulder disability The Veteran contends that her bilateral shoulder disability is related to active duty service. Review of the Veteran’s medical treatment record shows complaints and treatments for bilateral shoulder pain. In March 2019 the Veteran was seen for complaints of shoulder pain and assessed with bilateral shoulder “sprain/strain/arthralgia”. In an October 2020 VA examination, the VA examiner diagnosed the Veteran with bilateral shoulder strain. Accordingly, the Board finds the Veteran with a current disability. Review of the Veteran’s service treatment record does not show any complaints, treatments or diagnoses for a bilateral shoulder disability. In an October 2005 medical board examination, the Veteran did not report any painful shoulders or bone and joint deformities. The Veteran reported broken bones but noted that she underwent surgery for fractured hips in May and June 2005. Review of the medical treatment record shows in January 2012 VA medical center (VAMC) record, physical examination of the Veteran found no shoulder stiffness. The Board notes that x-rays were performed in 2006 for the Veteran’s hips, knees and ankles; a 2011 x-ray was canceled when the Veteran was found to be pregnant at the time of examination. At the Veteran’s December 2017 hearing, the Veteran testified that she had “arthritis in both of my shoulders.” The Veteran stated that her bilateral shoulder disability was due to carrying heavy rucksacks and weight during basic training in active duty service. The Veteran stated that her shoulders bothered her during service, but she pushed through it; the Veteran also testified that she experienced symptoms within the first two years from her separation from service. The Veteran stated that she could not recall when she was diagnosed with her claimed arthritis of the shoulders; the Veteran stated that she was unsure whether x-rays were ever taken for her shoulders. The Veteran indicated that she previously went to an OB-GYN provider for treatment and had spoken to them about her shoulder; however, the Veteran stated that she had not seen them since 2015 due to a lack of coverage. The Veteran also indicated that she went to VA for x-rays and other treatment but stated that she did not go that much because of difficulty getting appointments. In a March 12, 2019 private chiropractor visit, the Veteran was seen for treatment of injury following a motor vehicle accident on March 7, 2019. The Veteran reported that while waiting to exit her apartment complex her vehicle was struck on the driver’s side by another driver who was backing out a parking space. The Veteran reported pain in her cervical spine, left shoulder, lumbar spine, and hips. The Veteran denied going to the hospital for treatment. X-ray testing of the Veteran’s left shoulder was found to be unremarkable with no found issues. The treating provider assessed the Veteran with traumatic left shoulder arthralgia. In a March 13, 2019 private provider visit, the Veteran was seen for pain in both shoulders. The Veteran reported that on March 7, 2019 the Veteran was involved in a motor vehicle accident when she was hit on the driver’s side while she was reversing her car. The Veteran stated that she did not go to the emergency room or seek urgent care. Physical examination of the Veteran found limited range of motion of the shoulders due to pain. The treating provider assessed the Veteran with bilateral shoulder “sprain/strain/arthralgia”. From May 2019 to July 2019 the Veteran was seen at the private chiropractor for followup treatment and physical therapy; the Veteran reported moderate to severe shoulder pain and assessed with shoulder arthralgia. The Veteran was afforded an October 2020 VA examination. The VA examiner diagnosed the Veteran with bilateral shoulder strain. The Veteran reported the onset of her condition beginning in 2005 while she was in “basic training with the heavy ruck sacks”; the Veteran noted that she was focused on her hips at the time stated that she did not go to sick call. The Veteran stated that upon being discharged she “began feeling the real pain in her shoulders.” The Veteran stated that she had been seen by VA for shoulder pain but could not recall if any images were done or specific diagnoses given; the Veteran stated that she felt like it was arthritis with sharp pain and tightness. The examiner noted that x-rays performed at the examination were not clinically indicated. The VA examiner found it was less likely than not that the Veteran’s claimed bilateral shoulder disability was incurred in or caused by her claimed inservice injury, event or illness. The examiner noted that although the Veteran reported shoulder pain began during active duty after overuse from carrying heavy rucksacks, review of the claims file did not show any complaints of shoulder pain during active duty or objective evidence of a shoulder condition throughout the active duty timeframe. The examiner noted that the Veteran had been treated for other injuries during active duty service and completed physical training; the examiner found that during this period the Veteran did not report or complain of shoulder pain. The examiner found the initial complaint for shoulder pain in the claims file was in March 2019 when the Veteran reported shoulder pain following a motor vehicle accident. As such, the examiner found it less likely than not the Veteran’s shoulder disability was related to active duty service. As the October 2020 VA examiner provided a detailed review and examination of the Veteran’s claims file, made repeated references to pertinent past records and statements consistent with the evidence of record. As such, the Board finds that the VA examination report and medical records documenting the nature and extent of the Veteran’s bilateral shoulder disability, to be the most probative evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran’s statements that her bilateral shoulder disabilities were related to his military service. Certainly, the Veteran is competent to describe experiencing symptoms in service and recurring thereafter. Indeed, treatment records corroborate at least to some extent the Veteran’s history of symptoms. Nevertheless, as lay persons, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Here, the October 2020 VA examiner considered the in-service clinical findings and her report of symptomatology thereafter. The examiner still found that it was unlikely that her reported in-service problems were related to any current disability. The Board finds that the Veteran’s opinion is outweighed by the competent opinions of the VA examiner. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board also notes that review of the claims record show inconsistencies in the Veteran’s reported history and symptoms of her claimed bilateral shoulder disability. Such inconsistencies include the Veteran’s account of a shoulder injury from a motor vehicle accident where at the private chiropractor she reported that her car was struck by a vehicle reversing into her conflicting with her report to a private provider the next day where she stated that her car was struck on the side while she was reversing her car. Given the inconsistencies of the statements made by the Veteran in the treatment record, the Board affords the Veteran’s statements less probative weight and outweighed by VA examination of record performed by professionals. The Board also notes that while the Veteran at the December 2017 hearing testified receiving treatment with a private OB-GYN provider and speaking to them regarding shoulder problems, review of the claims record does not show these records nor has the Veteran submitted these records to be associated with the claims record. The Board first notes that service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disease is shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a bilateral shoulder disability on a presumptive basis is not warranted as the record does not show evidence of arthritis in the Veteran’s shoulders. As noted above, X-rays held in March 2019 and October 2020 did not find evidence of arthritis in the Veteran’s shoulder. Although the Veteran has stated or testified to pain in the shoulders within one to two years from separation from active duty service, review of the record shows the earliest medical evidence documenting complaints relating to the shoulder was in 2019, many years after the Veteran’s separation from service. As such, the available medical evidence does not support or show that the Veteran’s bilateral shoulder disability was present to a compensable degree within a year of the Veteran’s separation from service. Accordingly, service connection for a bilateral shoulder disability on a presumptive basis is not warranted as there is no evidence of arthritis in the shoulder or that a chronic disease manifested to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. Based on the above, the Board finds that the competent evidence on record is against a finding of service connection for the Veteran’s bilateral shoulder disability. The Veteran’s STRs show no complaints, treatments or diagnoses for a bilateral shoulder disability. Review of the Veteran’s medical treatment record shows the Veteran received treatment for bilateral shoulder pain; however, the earliest documentation of record relating to the shoulders was in 2019, many years after the Veteran’s separation from service. Although the Veteran has stated or testified that she spoke of her issues with her shoulders arose within a year or two after her separation from her service and with a private OB-GYN provider, the Veteran has not identified or submitted records relating to these contentions to be associated with the record. Significantly, the only medical opinion addressing the etiology of the bilateral shoulder disability is the October 2020 VA examiner’s opinion. The October 2020 VA examiner considered the Veteran’s report of symptoms during intervening years but provided reasoned analysis of the case to support their opinion that the Veteran’s current bilateral shoulder disability was not related to or the Veteran’s active duty service. As such, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran’s bilateral shoulder disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, 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.