Citation Nr: 21004740 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-30 171 DATE: January 28, 2021 ORDER Entitlement to service connection for an upper right extremity disability is denied. FINDINGS OF FACT 1. The Veteran’s right upper extremity disabilities were not caused, or aggravated, by any period of active service. 2. The Veteran’s right upper extremity disabilities were not caused, or aggravated, by any service-connected disability, including due to the examination performed in August 2012 in relation to the Veteran’s service-connected COPD. 3. The Veteran does not have an additional right upper extremity disability that is proximately due to the examination performed in August 2012. CONCLUSION OF LAW The criteria for entitlement to service connection for an upper right extremity disability have not been met. 38 U.S.C. §§ 1110, 1151, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1951 to November 1954. The Veteran testified at a videoconference hearing in April 2019 before the undersigned. A copy of the transcript is of record. The Board remanded the Veteran’s claim for in August 2019, February 2020, May 2020, and October 2020. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Initially, the Board notes that the Veteran filed this claim as one for entitlement to compensation under the provisions of 38 U.S.C. § 1151 based upon treatment received during his QTC examination on August 9, 2012. As the Veteran has been granted service-connection in relation to the condition being examined on August 9, 2012, the Board has characterized the Veteran’s claim as one for service connection. See Solomon v. Brown, 6 Vet. App. 396, 402 (1994) (the Board must consider an appellant’s theory of secondary service connection under 38 C.F.R. § 3.310(a) for a condition where the alleged proximate cause was a surgery necessitated by a service-connected disease or injury). The Board notes that service connection is a greater benefit than compensation under the provisions of 38 U.S.C. § 1151 and requires a lower burden of proof on the part of the Veteran; as such, the Board will address the Veteran’s claim as one for service connection. Entitlement to service connection for an upper right extremity disability In October 2012, the Veteran filed a claim for compensation regarding a right upper extremity disability that he contended resulted during x-rays taken during an August 2012 QTC examination. While the evidence demonstrates that the Veteran was diagnosed with an upper right extremity disability during the appeal period, the Board finds that the evidence of record does not establish that the Veteran sustained an upper right extremity disability due to a service-connected disability, including his August 2012 VA examination, or his period of active service; accordingly, the Board finds that service connection for a right upper extremity disability must be denied. In March 2011, the Veteran filed a claim for service connection for a lung condition. The Veteran was eventually awarded service connection for COPD, asbestos in a December 2019 rating decision. As part of the Veteran’s claim for a lung condition, he was sent to a QTC examination in August 2012. The Veteran reported that he was asked to lift his right arm over his head in order to undergo chest x-rays as part of the examination. He states that he informed the examiner that he was unable to lift his right arm over his head. The Veteran stated that in response the x-ray technician lifted his right arm above his head causing him pain in his right arm. During his April 2019 hearing, the Veteran provided testimony regarding his August 2012 QTC examination. He stated: The outside doctor grabbed my arm and jerked it up over my head, and [said] here I’ll help you, and he didn’t help. The pain got severe right then. I left. When I got to the car, I couldn’t get the key in the ignition, and my wife had to [do it] for me. We drove home, and I kept my arm resting in my lap, drove home left-handed, quite a ways. When we got home, I tried to open the door with my left hand, couldn’t do it. When I turned the key with my right hand, it felt to me like I’d been hit on the shoulder or the arm with a sledgehammer… I’ve never felt any pain like it before or since. My wife put ice packs on it. I couldn’t get to the doctor until the next day. See 2019 Hearing Transcript (H.T.), p.10. While he had previously had symptoms with his right shoulder, the Veteran reported that his symptoms were worse after the examination, “They put me on a program for therapy… and they got my range of motion back, but I’ve never gotten full strength in my arm. I still can’t get a bottle of milk out of the refrigerator. H.T., pp. 11. The claims file indicates that the Veteran underwent a QTC examination regarding his lung claim on August 9, 2012 and that chest x-rays were taken at that time. On August 10, 2012, the Veteran was seen at the Long Beach VA Medical Center for a primary care visit. It was noted that the Veteran had gone to an outside clinic for chest x-ray yesterday, a tech assisted him to raise his right arm (which was painful), and he had pain while driving home. Afterwards, he went to put his keys in the door when he got home, felt an ‘explosion’ of pain, now can’t abduct or extend his arm. Put ice packs on it for five or six hours.” In August 2012, the Veteran underwent an MRI of his right shoulder at St. Joseph Hospital. The examiner noted an impression of a large supra and infraspinatus full-thickness tear with tendon retraction and muscle atrophy. The examiner also reported an attenuated intra-articular segment of the biceps tendon. Severe acromioclavicular joint degenerative change with superior and inferior spurs was also reported. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a Veteran 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”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to diseases with “unique and readily identifiable features” that are “capable of lay observation.” See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). 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. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Unfortunately, the probative evidence of record weighs against a finding that any right upper extremity disability present during the appeal period was caused, or aggravated, by any service-connected disability, including the treatment received at his August 2012 VA examination for his service-connected COPD. The competent evidence of record does not support a nexus between any current right upper extremity disability and the Veteran’s treatment received at his August 2012 VA examination for his service-connected COPD. Particularly, the Board finds probative the opinion of the November 2020 VA examiner that it is less likely than not that the Veteran has had an upper right extremity disability, including of his right shoulder and biceps, that was caused by the incident in August 2012 when an x-ray technician lifted the Veteran's arm upward over his head. The examiner noted that the Veteran’s records show that he was treated on multiple occasions for right shoulder pain with corticosteroid injections after his August examination. During these evaluations, the examiner found that his range of motion testing was consistent with prior evaluations prior to this injury. Further, the examiner stated that the Veteran showed considerable improvement in range of motion strength and conditioning of the right shoulder during physical therapy records. The Board finds that the examiner’s opinion considered all of the pertinent evidence of record, to include the lay statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board further notes that no competent opinion has been provided that any disability was caused, or aggravated, by any service-connected disability, including the treatment received at his August 2012 VA examination for his service-connected COPD. While the Veteran has reported increased pain and residual weakness of his arm after the examination, the Veteran is not competent to opine as to whether he suffers from a disability or a pre-existing disability was aggravated by the treatment received at his August 2012 VA examination. The Board finds that an opinion regarding the causation, or aggravation, of right rotator cuff tendonitis or degenerative joint disease of the acromioclavicular joint is of a complex medical nature and beyond the scope of a lay opinion. See Jandreau, at 1376-77. The Veteran has not contended, and the evidence does not show, that he has the medical expertise to provide such an opinion. The Veteran’s VA and private treatment records associated with the claims file do not otherwise report that any current right shoulder disability was caused, or aggravated, by his service-connected disability, including the treatment received at his August 2012 VA examination for his service-connected COPD. In sum, the Board finds that the weight of the competent evidence of record does not support that any service-connected disability, including his treatment received at his August 2012 VA examination for his service-connected COPD, caused, or aggravated, any disability of the right upper extremity present during the appeal period. See 38 C.F.R. § 3.310. The Board also finds that direct service-connection is not warranted for a right upper extremity disability. The Veteran’s service treatment records from his active duty service are silent for any right upper extremity complaints. The Veteran’s examination prior to separation from active service in November 1954 did not report any impairment of the right upper extremity. The competent evidence of record does not support a nexus between any current right upper extremity disability and any activity of the Veteran’s active service. The Board notes that the Veteran has not contended his right upper extremity disabilities are directly due to his period of service and has not reported that any medical professional has informed him of such a connection. Without any evidence indicating a relationship between the Veteran’s current right upper extremity disabilities and his period of service, the Board finds that service connection on a direct basis must be denied. See 38 C.F.R. § 3.303. To the extent that it is determined that the Veteran’s claim for compensation under the provisions of 38 U.S.C. § 1151 related to his August 2012 QTC examination is not subsumed by a claim for service connection, the Board finds that the evidence does not support that the Veteran has an additional disability that is proximately due to his August 2012 VA examination. The Board finds probative the opinion of the November 2020 examiner that any upper right extremity disability present during the appeal period is less likely than not proximately due to the incident in August 2012 when the x-ray technician lifted the Veteran’s arm upward over his head to obtain a chest x-ray. The examiner considered the Veteran’s lay statements and the medical evidence of record; however, the examiner opined that the tears described in the MRI report were chronic tears and not acute tears. The examiner noted that the supraspinatus muscle is used in abduction of the shoulder, and the infraspinatus muscle is used in extension, it would be unlikely that these would be torn with the effort of lifting the arm in a flexion motion to lift above the head. The examiner also noted that on his examination that he had no swelling, erythema/redness, warmth or signs of inflammation or synovitis that one would expect with an acute traumatic tear of multiple tendons of the rotator cuff. Further, the examiner noted that most elderly claimants with rotator cuff tears do not have an identifiable trauma, they are spontaneous tears with everyday use and over activity over a lifetime. As such, the examiner opined that any additional disability was not proximately due to the incident in August 2012. The Board notes that no competent opinion of record has been provided that the Veteran has any additional disability that is proximately due to his August 2012 VA examination. To the extent the Veteran has reported additional disability that is proximately due to his August 2012 VA examination, the Board finds that the Veteran is not competent to provide such an opinion. See Jandreau. As the evidence of record does not support that the Veteran has additional disability that is proximately due to his August 2012 VA examination, entitlement to compensation under 38 U.S.C. § 1151 for a right upper extremity disability must be denied. See 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. 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 Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 58 (1990). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.