Citation Nr: 21004707 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 10-27 811 DATE: January 27, 2021 ORDER Service connection for a left shoulder disability is denied. REMANDED Service connection for a back disability, to include as secondary to a left shoulder disability, is remanded. FINDINGS OF FACT The Veteran’s left shoulder disabilities were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1956 to June 1959. This matter comes before the Board of Veterans’ Appeals (Board) from February 2008 and June 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded several times. The Board denied the issues on appeal in November 2013 and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2015 Memorandum Decision, the Court vacated the November 2013 decision. In June 2017, the Board denied the issues on appeal, and the Veteran appealed to the Court again. In a January 2019 Joint Motion for Remand (JMR), the Court remanded the issues on appeal for compliance with the JMR. In July 2019, the Board remanded this matter for development consistent with the JMR. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800 (c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Service connection for a left shoulder disability is denied. The Veteran seeks service connection for a left shoulder disability. The Veteran contends his left shoulder disability is the result of an engine liner being dropped on his shoulder during service. See, e.g., September 2013 correspondence. For the reasons that follow, the Board finds entitlement to service connection is not warranted. An April 2016 VA examination reflects current diagnoses of left shoulder rotator cuff tendonitis, rotator cuff tear, and acromioclavicular joint osteoarthritis. Thus, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left shoulder rotator cuff tendonitis, rotator cuff tear, and acromioclavicular joint osteoarthritis and evidence shows that an in-service left shoulder injury occurred, the preponderance of the evidence weighs against finding that the Veteran’s current disabilities began during service or are otherwise related to an in-service injury, event, or disease. Furthermore, to the extent osteoarthritis is an enumerated condition under 38 C.F.R. § 3.309(a); the Board finds that the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s January 1956 enlistment report of medical examination reflects a normal clinical evaluation of the upper extremities. His enlistment report of medical history reflects endorsements of mumps and whooping cough but no upper extremity conditions. The Veteran’s service treatment records reflect the Veteran was hospitalized from October to November 1958 for treatment of left shoulder pain diagnosed as bursitis associated with lifting heavy workloads. A February 1959 service treatment record notes complaints of left shoulder pain and a diagnosis of calcified subacromial bursitis; however, associated x-rays were negative. From February to March 1959, the Veteran was hospitalized for left shoulder bursitis; however, clinical evaluation was normal and his diagnosis at discharge was changed to anxiety reaction. The Veteran’s June 1959 report of medical examination notes a normal clinical evaluation of the upper extremities. An undated Reserve report of medical history reflects the Veteran endorsed a history of swollen or painful joints but denied a history of painful or trick shoulder or elbow. The Veteran’s post-service treatment records are silent for a left shoulder disability until May 2003. The May 2003 private treatment record notes some problems with neck and shoulder pain and the possibility of a herniated protruding disc. A June 2006 private treatment record notes left upper trapezius pain. A December 2003 private treatment record notes seven to eight months of left shoulder pain. In May 2005, the Veteran reported a three to four-week history of limited movement of the left shoulder and a history of prior trauma to the shoulder with a history of bursitis. Subsequent May 2005 treatment records note extensive hypertrophic changes to the acromioclavicular joint and an insidious onset of left shoulder pain. In June 2005, the Veteran reported his left shoulder pain started in April 2005. In May 2008, the Veteran reported a neck injury in service with neck and left shoulder pain since the injury. The Veteran’s post-service treatment records reflect ongoing complaints and treatment for left shoulder pain. See, e.g., November 2019 VA treatment record. In March 2008, the Veteran reported a cylinder coming down on his shoulder and pinning him against the stairs. The Veteran reported continuous pain with worsening in the last six years. A November 2010 private examination notes review of the Veteran’s claims file and complete medical record. During the examination, the Veteran reported his symptoms began in October 1958 when he was replacing a liner in a main engine that weighed 540 pounds and it fell on his arm. The private chiropractor opined that ‘it is without question’ that the Veteran’s left shoulder disability is directly related to the service-connected injury he sustained in 1958. The chiropractor noted that magnetic resonance imaging (MRI) was not available in 1958; therefore, a more complete diagnosis of his in-service injuries was not possible. The private chiropractor noted agreement with the diagnosis of acute bursitis but indicated he believed the Veteran sustained a full thickness tear of his supraspinatus and a partial tear of the infraspinatus, which resulted in degenerative arthritis of his left shoulder. In support, the private chiropractor noted the Veteran reports no other trauma to his left shoulder since 1958, and full itchiness rotator cuff tears only occur after significant trauma. The chiropractor also noted acute bursitis can also lead to chronic bursitis, which will also lead to arthritis of the shoulder. The chiropractor further opined that it is as likely as not that the acute bursitis he was diagnosed with in 1958 led to the arthritis he currently has in his left shoulder. VA examinations and opinions were obtained in February 2008, April 2013, November 2015, April 2016, and January 2020. As the opinions and rationale were previously found to inadequate, they will not be considered. In compliance with the Board’s July 2019 remand directives, a new VA opinion was obtained in January 2020. The VA examiner opined that the Veteran’s left shoulder condition is not due to, did not have its onset during, and is not otherwise medically related to his active service. The examiner noted his service treatment records reflect treatment for a left shoulder condition; however, there is an absence of a chronic left shoulder condition. The examiner indicated that bursitis is generally self-limited and easily treated such that it resolves with no residuals. The examiner noted that the service treatment records show that on discharge in February 1959, there were no active shoulder symptoms. Physical examination in July 1959 finds the absence of left shoulder symptoms, examination abnormalities, or diagnosis. The examiner acknowledged that the Veteran dates his symptoms to his active military service; however, the objective evidence finds absence of a left shoulder condition that onset in active duty. Finally, the examiner noted the first diagnosis of a left shoulder condition after service is over 40 years after service and intercurrent injury and trauma are unknown. After a review of the evidentiary record, the Board finds that the preponderance of the evidence weighs against finding entitlement to service connection for a left shoulder condition. Regarding osteoarthritis, the Board finds the preponderance of the evidence is against finding that the Veteran’s left shoulder arthritis was shown as chronic in service, manifested to a compensable degree within a presumptive period, or was noted in service with attributable continuity of symptomatology. While the Veteran is competent to report onset and continuity of his symptoms, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he had a normal clinical evaluation of the upper extremities at separation from service, denied experiencing arthritis and/or related symptoms around 1963, and did not report left shoulder pain until 2003, decades outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran also asserts his current arthritis is related to service. However, to the extent that these statements are offered to establish a causal nexus, the probative value of these assertions is outweighed by the competent medical evidence of record. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the potential relationship between the Veteran’s currently diagnosed arthritis and his in-service bursitis, is complex in nature and falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). There is no indication that the Veteran possesses the medical knowledge to attribute his condition to events or injuries in service. Therefore, he is not competent to opine on this complex medical question and these lay assertions are insufficient evidence to establish etiology. Consequently, the Board places little weight on these statements and gives more probative weight to the medical evidence of record rendered by competent medical professionals with the clinical expertise and training to render medical opinions on the etiology of complex medical conditions, such as arthritis. In reaching this conclusion, the Board acknowledges the November 2010 private opinion provides a positive nexus opinion; however, the Board finds the opinion must be given limited probative value. While the chiropractor indicates review of the Veteran’s claims file, the Board notes that the chiropractor’s opinion is speculative in nature. Bloom v. West, 12 Vet. App. 185, 187 (1999). He merely states his belief that the Veteran sustained a rotator cuff tears as a result of the in-service injury, which then resulted in his current left shoulder disability. Additionally, in finding that the Veteran sustained a rotator cuff tear in service, the private chiropractor did not address evidence of normal range of motion prior to separation from service. The Board acknowledges the chiropractor’s opinion that the Veteran’s left shoulder disability is related to his service irrespective of whether his in-service left shoulder condition includes a rotator cuff tear; however, the Board notes he provided no rationale for this opinion. Moreover, the private chiropractor did not address the discrepancy between the Veteran’s report of events during his examination and during service. While the February 2008, April 2013, November 2015, and April 2016 VA opinions were found to be inadequate for adjudication, the Board notes the January 2020 VA opinion is supported by review of the Veteran’s entire claims file and establishes that these symptoms are not attributable to in-service bursitis, joint pain and limitation of motion, multiple left shoulder injections, and hospitalization. Thus, the Board finds the probative weight of the private medical opinion and the lay statements of record are outweighed by the probative weight of the more comprehensive and well-supported VA opinion, which is based upon consideration of the Veteran’s pertinent medical history and his lay assertions and complaints. Service connection for a left shoulder condition may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's alleged disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. While the Veteran and his private chiropractor believe his left shoulder conditions are related to an in-service injury, event, or disease, the Board reiterates that the Veteran is not competent to provide a nexus opinion in this case and his reports of continuous symptoms since service have been found to be not credible. Further, while the Veteran’s private chiropractor is competent to provide a nexus opinion in this case, the Board notes that, as indicated above, the opinion fails to address the evidence of record against the claim, and, as such, does not provide a sufficient basis upon which to support a claim. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Thus, the Board finds the probative weight of the private opinion is outweighed by the probative weight of the other competent medical evidence of record, specifically the VA opinion of record. To the extent the January 2020 VA examiner relied on an absence of evidence of a left shoulder condition at separation to support their conclusion, the Board notes it has found the Veteran did not experience such a continuation of his condition in service. The Veteran is competent to report his readily observable symptoms, but the Board has found his reports of such to be not credible. Further, on the report of medical history completed subsequent to his separation, he indicated “no” for any symptoms related to his currently diagnosed left shoulder conditions. This is affirmative evidence contrary to his current assertions, and the Board finds it more probative given that the statement was made contemporaneous to service. Thus, the examiners’ statements that the Veteran did not complain of left shoulder conditions at separation is factually consistent with the Board’s finding herein. Therefore, the Board finds the supporting rationale of the January 2020 VA opinion, in particular, is consistent with the facts found and, when considered alongside the other competent medical evidence of record, is adequate to decide the claim. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Accordingly, service connection for a left shoulder condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).   REASONS FOR REMAND 1. Service connection for a back disability, to include as secondary to a left shoulder disability, is remanded. The Veteran contends his spine (cervical and lumbar) conditions are due to an engine liner being dropped on his shoulder during service. See, e.g., September 2013 correspondence. Unfortunately, there has not been substantial compliance with the Board’s July 2015 remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2015, the Board remanded the appeal for an addendum opinion regarding the nature and etiology of the Veteran’s back disability as directed by the Court’s March 2015 memorandum decision. A VA opinion was received in April 2016. In the January 2019 JMR, the Court found fault with the Board’s reliance on the April 2016 VA opinion. The Court noted that the opinion failed to address the treatment records from 2005 to 2007 showing lumbar spine symptoms as instructed in the prior remand orders. The Court also noted that the examiner attributed the Veteran’s back pain to his post-service 2008 worker’s compensation injury. However, the record shows the Veteran complained of and was treated for lower back pain prior to his injury. For instance, a January 8, 2007, treatment record showed low back pain was reported and an October 11, 2006, treatment record showed complaints of lower back pain). Finally, the Court noted that the examiner failed to consider Veteran’s in-service complaints and findings of joint pain and limitation of motion. In compliance with the January 2019 JMR, the Board requested an addendum opinion regarding secondary service connection, but unfortunately omitted a directive for an opinion addressing direct service connection. An addendum opinion must be obtained to ensure substantial compliance with the July 2015 remand directives. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s current spine disabilities, to include cervical and lumbar conditions. The examiner is to address the following: a) Did any cervical spine or lumbar spine disability at least as likely as not have its onset during active service? b) Is any cervical spine or lumbar spine disability at least as likely as not otherwise related to an in-service injury, event, or disease? c) Did any cervical spine or lumbar spine degenerative joint disease at least as likely as not manifest within a year of separation from service? In rendering the requested opinions, the examiner should consider in-service complaints and findings of joint pain and limitation of motion and should also address treatment records from 2005 to 2007 showing lumbar spine symptoms. If occupational, activity, or aging factors have any bearing on the current severity of a cervical or lumbar spine disability, the examination report must include a discussion of the specific occupational or activity factors attributed the particular disability(ies), and describe how the aging factor was weighed against other factors. In this regard, the examiner is advised that the record shows the Veteran complained of and was treated for lower back pain prior to his post-service 2008 worker’s compensation injury. (For instance, a January 8, 2007, treatment record showed low back pain was reported and an October 11, 2006, treatment record showed complaints of lower back pain). If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner must provide a complete rationale for all proffered opinions. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, Associate 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.